board's or her attorney yemi get to however did and for approximately nine months and ultimately file that motion some six months late when she found her motion six months late ms got to choose made absolutely that it was in fact one of the b i ruled your honor that she would not of been able to prove that it was bona fide within ninety days of her marriage it's undisputed that the marriage is bona fide because at this point we haven't approved i want thirty partition from u genuine at the time ninety days after the board decision right and if you look at her sworn affidavit this is on page eleven and twelve this is completely on contradicted and you know under our present sworn affidavits of the sort they have to be accepted the contents have to be accepted as true unless the holy unworthy of belief but her affidavit says if you look at the bottom of page eleven and then the top two at page twelve i'm so frustrated that my music gets you is now saying this because they never asked me for any more proof of our marriage at the time they were preparing the motion to reopen all ms get it you asked for at that time was one or two pictures of the marriage and the fellow that she was working with mr obie yami never asked me for anything she goes on to say if they had already asked of course we would have provided them our friends could have written letters whenever we asked and we could have collected other documents at that time now years later we're talking six seven years later she says we have so little information from that period because who keeps ticket stubs and phone bills for years and years the bottom line is everybody agrees the marriage is bona fide she says in her sworn affidavit if they just asked me at that time i would have given them all the evidence they need and it's obviously beyond dispute at this point if they had been requested to do so at a minimum she could have provided her own sworn affidavit and her husband sworn affidavit detailing when then that how they met when he had a role that it's school in nebraska why he felt the need to attend school in nebraska how he was traveling back whenever he had a vacation but they never asked and if you look at the evidence that was submitted here you know some of the evidence that remains from that period for example we have paid just fourteen through twenty nine  are pictures of mister ahmed and her husband from periods that predate the marriage all the way up until two thousand and six showing them on vacations and time her in reno you know all these various places where they travel together but the board  even consider that the board said she presented no evidence that she could have met the velocity but shakos standard if a time in motion had been filed but that's just wrong that ignores her declaration that says i could have presented the evidence if only they had asked it ignores the various photographs that they presented of themselves throughout their now eight year old and it also ignores the various affidavits that came from friends and it's true that these are dated from like november of two thousand and these documents were obtained for the visa interview with us the i asked not presented to the board because again to get she was focusing on getting us c i s to approve the petition which they did but this exact same evidence could have been presented and i think it's important that you take into you know consideration the fact that at this point everybody agrees that the marriage is bonafide u s c s itself has approved the petition and if they if she could be her burn in two thousand and six it's certainly  e that she could have met that burden in two thousand and four two years earlier the only other reason that the board gave for denying the motion to reopen is that the that i just want to point out one thing that is missing from the second and third circuit's decisions is any reference to the regulations the regulations provide far one thousand and three point one d one to the status quo board members shell exercise their independent judgment and discretion and considering and determining the cases coming before the board they don't get to just delegate their discretion to the government one of the adversarial parties and then in the cases that come before them busy it's an interesting case it comes out the other way but if you look at that it's an example of exactly why it's inappropriate to give the board of immigration appeals a veto power give the government veto power over these sorts of motions to reopen a timely appeal that tolls the running of the voluntary departure period so the government's proffered justification for opposing the motion was inconsistent with some thirty one years of precedent  sixteen i n n one sixty eight but ever since one nine hundred seventy seven the board has said if you file a timely appeal the voluntary departure period is stayed but the government in busy was opposing a motion to reopen arguing exactly the opposite their position was patently wrong second motion to reopen was denied on the ground that i correct or not that the government opposed the first motion was and then the second motion they said that because the government had opposed the first motion then that necessarily would have been testimony the testimony on this on claim it's all over the map you know i mean she she wasn't deemed not credible but if you look at her testimony it's obvious she doesn't know whether her family was deported you just know for sure she doesn't know whether or how long her father was in jail  i don't think we can make out a past persecution claim based on that stuff but what i do think is clear from her testimony is and this is on page eight o two of the administrative wrecker she testified that when she contacted the ethiopian embassy in an effort to renew her passport she was told quote we don't recognize your ethiopian citizenship but she didn't submit an affidavit or anything we did stand this we have her just like paul newman and i didn't follow up that's right is that sufficient well the immigration judge said that's not sufficient because you know there's no corroboration but and he focused on the fact that the country or court had said that they're no longer deporting people but just right below that section of the country that the immigration judge is focused on this is on page ten ninety six of the administrative record it says quote the law requires citizens and residents to obtain an exit visa before departing the country and it goes on to say you're a transit passport sometimes they just don't give it back but hurt her testimony on that point is corroborated by the state department says often you're a trans and people of air tran ethnicity on able to return so on that point i think the case should be that the judge can reconsider that because he never there was never any administrative determination about whether she has a well founded fear of being unable to return and if so whether the refusal to allow her to reenter the country would constitute persecution and as we pointed out our twenty eight day letters the seven circuits consider this an a on a number of occasions and identical situations where ethnic eritreans were refused reentry even though they weren't deported they were refused entry and the seventh circuit second motion to reopen was denied for four of belief or of the five full already projected standers it was untimely it was number board she did not show then went to the ineffective assistance of counsel claim to find out if the the on time and should be told it's a second stage they went to see they went to an analysis in the second motion to reopen to see if there's on time and it should be should be told it's not it's not the first analysis the first step analysis of whether there's clear and convincing evidence of the of the marriage it's the second stage an throwing that they could have shown at the time of the first one that it was a bona fide marriage yes and that's why there was no prejudiced to to excuse the very high standard as you have to make a plausible showing well all we all we have is a marriage certificate we have her attorney saying that they didn't live together those photographs that the council pointed   we were to find that there was prejudice to her in the and timeliness of the first motion based on what in the second one we were to find that she showed prejudice in the first one being being filed untimely so that she had ineffective assistance of counsel at the time of the first one she they weren't living together there was no evidence of it and so she i believe it's clear she told her to go get to bring this together bring me some evidence let's let's get this marriage bonafide and by november she she gave it a shot she still didn't do to bring in a prostitute documentation is that correct well that's what that's what her affidavit says about her which is contradicted by her own lawyer and says and who says they weren't living together there were there were no bona thing we're talking about whether represents the clear and convincing evidence indicating a strong likelihood that the marriage is bona fide that's the only question the on question of discussing what you're on i think i've been told that i don't have authority to go into mediation at this point but i don't think mediation i think i've been doing this for twenty years i don't think mediation in this in this case is going to happen because the t in asking them whether they would be willing to at this point from my experience you know i don't think i don't think there is well hoping hoping that what they're doing these days is better than what they did with their past experience they've been more willing to cut go towards the haitian than they were in the past we have to we have been going to do more mediation so if you ask and they say yes you can let us know if we don't hear from you and say a couple of could just point out there's petition seems to admit there's no past persecution in ethiopia and the evidence is is just there's not much evidence of well certainly not compelling objective evidence that the well founded fear five and what ms get to chew actually says to justify her conduct actually shows ineffective assistance of counsel what she says to explain why the motion wasn't filed a she says quote i explained the requirement of a husband and wife living together to qualify for benefits under section two forty five of the immigration and nationality act and they were not living together there is no requirement that the husband and wife be living together full time for benefits under section two forty five her statements just wrong she says that she would file the most until she was assured that they were going to resume living together that is not a requirement couples are temporarily separated all the time for reasons of education she's mistaken on the law her