it was raised below in the it was actually raised because it cited the the first notary who had helped the petitioner fill out an asylum i would give me something in the record were raised to be i i will if i may continue i haven't cited to it so and then number two to any extent that it may not have been satisfied below as explained in petitioners reply to the response brief the exhaust requirement can be waived regarding number one the exhaust requirement having been satisfied below petitioner albeit three don't give us the cite to where it was exhausted below then you said you have the state but i think well i have the big place both where  initial immigration judges denial of due process was raised in the petitioners appeal brief to the b s a so tell us where it is i will so i will hear it but that's not a very satisfying response so when you come back and do this again that's something you ought to be able to give us when it's asked not tell us he'll tell us later well wait to hear it later well i just want to set out where i'm going ahead of time and we're looking for an answer the question and if you have two judges asking the same question then ordinarily that's when you want to answer the question yes i know so first regarding the initial immigration judges denial of his due process the appeal brief to the b i a that was drafted by the notary was signed known to the petitioner as a pro se appeal and a pro se petitioners brief even if quote unquote in artful can be sufficient but the be i on notice of a claim here the appeal brief to the b i a stated quote he was advised to seek voluntary instead without being informed knowing the consequences thereof and in fact the court simply granted him voluntary departure and that's it unquote argument that the initial immigration judge denied it just in or due process when he was at his first deportation proceeding and it was an artful but that was the notary's having to raise the argument of denial of due process that he well your honor i don't believe respectfully that the words due process have to actually be used in order for due process claim to be raised that's what i mean when i say that even quote unquote in artful the written document can be sufficient to put the court on notice and so then back to you say again how the what you just read would show that the due process claim was being made well because in the transcript from the initial deportation proceeding the judge said to the petitioner which country do you wish to go to it was her basically her first question to him she didn't even advise him that he had the right to renew appeal to the board the i was paid by the board i mean i don't have the page right now but it's it's is this your motion to supplement the record with that no this is not the motion to supplement i'm not speaking about the mo to supplement right now i am arguing that the response brief to our opening brief said that this court has no jurisdiction all we need to do is file another motion to reopen with the board of immigration appeals  however i believe that we don't that's not the proper course of action because the administrative scheme has been followed below and because exhaustion has occurred i believe the due process and the ineffective assistance of counsel arguments were raised albeit in artfully by the notary i'm working at the notice of appeal which appears or they are twenty eight thereafter three pages i don't think i see what you just read from i don't see anything that pushes forward than i would understand as a due process or ineffective assistance of a counsel argument so if that's the dock you are frank tell me a little lost it might be another document but i don't know what it is it's  eleven of the certified administrative record and it's in the last paragraph of page eleven of of the c a r this raised due process violation even if it didn't express they call it due process especially since it was written in pro per the b i should have known that it had to address the due process argument and it completely overlooked it in addition to overlooking the ineffective assistance of counsel claim which was also raised here in when it was stated that the petitioner was just waiting for his mother's visa petition to become current and wanted of a work permit in the meantime and someone filled out an asylum application for him saying this will get your work permit which it may have but it also caused all of this it looks like it says he was advised to seek a voluntary instead of or sorry instead without being informed knowing the consequences thereof it do you understand that to be a complaint about the lawyer a complaint about the judge or both i understand that to be a complaint i don't believe i guess i wasn't a lawyer but the person from portingale or well this is this is the person purporting to be a lawyer drafting the appeal brief was referring back to the initial deportation proceeding at which a when the petitioner had arrived the judge after asking you know did you sneak in  which country would you like to go to which is not the appropriate question and a first removal hearing when someone has just applied for asylum hearing transcripts not in the record that's not your motion to supplement the record isn't it and later in that transcript well the  representative informed the i j a that there was an asylum petition pending so i believe it or not everybody knew the asylum petition had been and they believe it or not it was actually the government attorney who tried to point out to the immigration judge when she said which country would you like to go to which it's sort of withdrawing his asylum application from before her he didn't know he could say anything other than the country he's from i'll salvador i suppose is what he responded  it was actually the government attorney who said your honor he's but he's applied for asylum and she said well he said you know salvador so she even started the government attorneys attempt to raise the issue that he's applying for asylum now as far as well i'm out of time they please the court victor lawrence on behalf of the attorney general this court to deny this petition for review because the board acted within its considerable discretion when it's a dive persisters motion to reopen as this court is aware and as the supreme court  on more than one occasion motions to reopen are particularly disfavored in immigration proceedings and this one particular has at least five grounds upon which this court can determine to deny this petition for review as the board decision was absolutely correct on the record that was before it when it ruled on this motion first of all this motion was filed fifteen fifteen years after the deadline the statute has an exception to the deadline of the ninety day deadline or the deadline from september of one thousand nine hundred six in the case of change circumstances for an asylum claim or a claim involving withholding of removal that's not what titian are brought here until the last minute before the board he mentioned something about change circumstances but didn't meet his burden of proof to show that there were actually changed circumstances that would allow him to now bring an asylum claim at this time at this juncture that he couldn't bring back in one thousand nine hundred four so the board correctly or within its discretion determined that he had it re raised a proper claim for an exception to that i did a time limitation opponent suggested that page eleven of the record indicated that there is a due process violation i respectfully disagree as your honor pointed out it's unclear who he's talking about in this particular brief when it says he was advised to seek voluntary was advised by a friend was advised by the judge who was he advised by it's not clear at all and accordingly the board appropriately did not seize on that and  determined that ineffective assistance or a due process violation was raised by the immigration judge here there was no ineffective assistance of counsel raised in this record and that's the problem that this court has to deal with and the appropriate method as we raised our brief is to file in another motion to reopen to exhaust that claim before the board before this court rules in the first instance whether or point and also pointed out the immigration judge transcript that's in this motion to supplement it's not in the record as judge pointed out it's and accordingly that that transcript also is not a certified transcript it's there's nothing to be clear about exactly what happened at the immigration hearing it's not in the record this is on a motion supplement they apparently did their own transcription it's not certified and should be certified transcript somewhere well there's a tape of the of the hearing that has not been transcribed into it into a certified transcript because it was never requested so you know when this record was constructed it was constructed with the materials that the board had before it when it ruled on the motion to reopen and there was no indication at that time that it was necessary to review the immigration judge transcript from what happened in  when they were seeking to reopen proceedings in two thousand and eleven so would the petitioner usually have to pay for the transcript or what would be the normal process for getting a certified transcript well in the in the first regard  if the petitioner wanted that transcript as part of the record he would have indicated to d h as counsel when he filed his motion to reopen or indicated to the court that it should look at the transcript at that time because he felt that he was being the immigration judge was not giving him due process in even raise that issue so that's why the transcript another reason why no transcript was prepared but how do you raise the issue the board could have determined well yes moot and then we should look at the transcript we should prepare a certified transcript and then look at that to fully resolve this motion so could he still now file a motion to reopen raising the due process issue and get a transcript and litigate this in that way he could now the proper method of course is for this court did not a petition for review rather than to remanded to the board because there's nothing that the board did to abuse its discretion with respect to the record before it at that time now if petitioner wants to file another motion to reopen he could request a copy of that a get a certified copy of that transcript and raise it to the board in the first instance on a motion another motion to reopen now normally there's a time limitation on motions to reopen there's also a numerical and limitation one motion to reopen however you can get around that if in fact you can get around that time limitation and then americal limitation by suggesting that there are changed circumstances in this country of or would ineffective assistance of counsel help get around those that that's not a typical route and i haven't seen any court opinions indicating that that's  that that's an exception to the time limitation because again the time limitation is statutory and the step the statute itself builds in that limitation it says that there's you have ninety days or until september ninety six to follow your motion to reopen what the one exception to that is if you're applying for asylum or withholding a removal removal if you have a circumstance where you could show change country conditions in the country of origin from the time of your original immigration hearing so so no there is no other exception there's no other exception for instance for bringing in a justice of status claim or as he also sought to do it one point here or to bring a claim for cancellation of removal that's also just not within the statute so what we have here is one of on the right because if you have an ineffective assistance of counsel problem and that's why you missed the time deadline to vote yes yes you are but that would be an equitable tolling argument right and you do to bring in equity tolling argument you have to show diligence and i think that's where this petitioner fails in large regard given that his claim is about something that happened in one thousand nine hundred four before the immigration judge and he's raising this in two thousand eleven or even later in the course of this petition for review that is not showing diligence and therefore is not cannot make a claim for ineffective assistance of counsel and i note that this court  counsel so i think what the court really has to focus on is what the record was before the board at that time and whether the board abused its discretion based on with the record before and we would submit your honour's that based on the record before the board at that time the board acted within its considerable discretion by denying a motion to reopen that was over fifteen years filed past a deadline without an adequate excuse for coming within an exception i no more questions i thank you for your consideration thank you counsel  you thank your honour's just because the board has broad discretion doesn't mean it has discretion to abuse that discretion the immigration judges transcript at the hearing it's part of the record when you file an appeal of an immigration judge decision the board of immigration reviews types a transcript and it goes to the parties and so it was in the record what the immigration judge had done at the time that the board entertained the appeal so what's in the report what are you pointing to now when you say it's in the record the president really great guy just first i don't see anything like that in the record that we have well it's unfortunate then that the b i a which did have that or access to it when it reviewed the motion to reopen had it do you know they had it if if it's not in the record that we have because they should have typed it or there's something should have doesn't mean they i mean what do you have actual evidence that before the v a there was a document that we don't have here it's somewhat irrelevant in the sense that if you're arguing change country conditions it has nothing to do with what is a change country conditions here just the level of violence in el salvador i don't even want to get into that argument because i don't have time respectfully  fact is that you know that there is a numerical bar on filing another motion if if he was taken advantage of by a notary even if he files another motion to reopen with the board and argues equitable tolling equitable tolling just says you can if we accept your argument it doesn't allow you to file another new motion to reopen and so if you know that if the cases is not remanded he he's not going to have another chance he's his mother's petition has been good for nearly a quarter of a century he's been going all over the place trying to you know get his green card he was sent to the consulate abroad he was sent back here file a waiver motion to reopen petition for review he's exhausted absolutely everything  vailable to him and you know that the board would not necessarily grant another motion to reopen because even if we toll digital a filing is not an exception to that the fact that one was