of the decision of the board of immigration appeals holding that she was not diligent in following her motion to reopen and was not entitled to equable tolling with leave of court i respectfully reserve five minutes for a bottle of your honor's during the pendency of this petition for review this court decided in the resendiz v lynch that equable tolling is applicable to statutory motions to reopen when the petitioner stablish is due diligence in pursuing her rights and that an extraordinary circumstance beyond her control prevented timely filing the facts in the present case are substantially similar to the case of lewis and is the petition was also a legal permanent resident who was ordered removed as an aggravated felon for an offense that just six months later she she wanted an affidavit or a sworn statement on january fifth that said that she recently found out she didn't say a day say today she said recently don't you have a duty to at least prove what day she found out if that's a day you're using is the day dick quotable towing ins and the ninety days began isn't it her burden to establish that date and this doesn't do that it just says she recently found out as of january  adequate you know the lawyer can help or draft one presumably the lawyer speaks english and knows what's needed and can ask her hey you said recently do you mean january fifth that day or did you mean two weeks before month before when i mean so i appreciate that she may not know all the fine points but that's why you get counsel so why do we have this very vague affidavit or duct declaration as the sole evidence of the end of the towing period even spotting you what is a very generous rule which is actual discovery and the totally so even we spotted you that you haven't given us a day yes your honor obviously we can only go by what's on the record we assume  and the way that the affidavit in my view the preparation for argument is that's why i understood as well when she was indicating that realize the court's confusion with the raid that she she that the facts stated are true and correct so that's the day she's signing this but then later on she doesn't say today i did it first of all it's not rational in my view to think that she just came up with this on our own she sat down beside a ride in sworn declaration if we're going to accept that she's someone knowledgeable about the law and poor and ignorant all the things that you've said and i don't know one way or the other that's inconsistent we just waking up one day and going oh my gosh i'm going to write a declaration this looks like something that you're told to write so again this says on this day she wrote the affidavit then she says i recently found out we don't know when that was it isn't that fatal to your claim even spotting you this very generous rule of actual discovery in the  clear as to when she actually discovered the decisions and garcia koreas when we entered the way i understood the statement as when she was saying recently is the day that she's drafting her statement you know if you go back and look at the reported decisions of this court very often i've seen a situation where a panel would say we recently decided blah blah blah and it's a case that seven or eight or ten years old it was a word recent is it is pretty loose isn't  it's definitely a poor choice choice of words but that's how i would characterize it to the court she exercise reasonable diligence and on january fifth  arguments the firm obtain the statement that we needed for purposes of finding the motion to reopen and the rest of the time was attorney preparation of the briefs that were presented to the immigration let me ask you this let's put aside for the moment the question of when she actually found out what was she doing that caused her to find out how did she find out what does the record show us about that the record does not run or obviously at the the b i am likely to resent this did in fact apply equitable towing or in other words consider equitable towing and spot the idea that it could exist and found her to lack diligence diligence is an aspect of equitable towing with or without any new case law ok that's been true for decades ok so my question is what evidence do we have on the record of how she found out and what she was doing to be diligent accepting she's poor in all of this stuff there's still some requirement of diligence what evidence do we have of either won how she actually did find out all timidly and what she was doing that you think qualifies as diligence first  knowledge and she was represented by counsel at all relevant times in this whole presentation to the i j a n b i a ok given that what evidence do we have of anything that would support anything i mean th problem i see no web didn't say anything other than on january fifth she does a declaration it says essentially now i know but it doesn't say when she she recently found out she say when she doesn't say how she doesn't say what she was doing that was diligent taking into account her indicates just a new facts that are to be proved in the reopened perceiving this statute and neither does it regulation indicate that it requires a high level of specificity and in this case she do we have that she's an educated and unable to speak english you know that because this this declaration is is readable and it's much more articulate than a lot of you know statements that i've seen from people so what evidence do we have of that other than your so well that's precisely the reason why we were clustering there is no don't you have a burden if you're going to come in and say that the i j a in the b i a messed up don't we need something more than speculation that they messed up and that this woman is on education all these other things and was diligent all we were basically spotting her a whole host of things based on nothing she certainly has knowledge of her education et cetera et cetera i mean my dad came here is an immigrant had a perhaps an even an evidentiary hearing to ascertain whether in fact she is one of the individuals as this court characterizing garcia cories right you save your full time for a vote thank may please this court my name is in drawl very behalf of the respondent the attorney general jefferson sessions in zones can two is challenging a removal order that was executed in two thousand she has a burden in her motion to reopen to demonstrate due diligence which this court has defined as reasonable diligence this is a standard that this court has held for decades and the immigration judge  the board correctly determined that the affidavit that she submitted did not meet her burden and accordingly because the board's decision was consistent with the decisions of this court and other courts of appeals the decision was not  there's there's nothing about when she learned of the decisions how she discovered it and what effort she under and the case law is fully consistent that i mean actually the i j a found that she discovered in october two thousand and fourteen based on an attorney's statement in the pleadings and you haven't said anything really about that in your briefing what do we do with that i know somebody said that's a mistake but i mean we don't really have any evidence and when she discovered it why wouldn't that be some evidence corrected the the motion to reopen before the immigration judge actually provided multiple itself is still untimely however the board did not get to that issue and so we are focusing just on what the board held which is that she failed to demonstrate due diligence as opposed to even with due diligence it was  timely if the case was reopened and then it was terminated then yes she would be allowed to return don't you think that's a lot of incentive to for someone in mexico  solve a problem she can demonstrate the efforts that she undertook the standard that this court employs is reasonable diligence and while she may have an incentive she has to act on that incentive and there's no clear cut answer and exactly what she can do but that's what she needs to demonstrate in her affidavit before the immigration judge it's something more than nothing correct she has to or she hasn't shown anything more than diligence because there was just simply no facts provided in the affidavit and we know that she didn't come back we don't actually know we don't know where she is there is some uncertainty over that given that the filings with the immigration judge in the board do not list the residence for her so i mean she could have come back a long time ago and that would also implicate whether she's going to have much of an incentive to get back in the system so to speak because just because you move to reopen a necessarily me and you and they reopen it doesn't mean necessarily when could be other things we don't know about we don't know what she's been doing in the intervening sixteen years that would affect her ability including coming back  would affect her ability to to potentially regain her permanent resident status right that is christmas not automatic just because she gets there just because her emotion reopens timely and just because she has this argument that the original removal was wrong that doesn't the charge of remove ability of course given the sixteen years homeland security could if they find other charges could could charge her with affidavit is so essential and if there's just nothing there to demonstrate that she warrants reopening it's not dealing with the discretion of an agency on whether somebody you have a it's a very very deferential standard view that we have here over the board of immigration appeals and you're asking us to find as a matter of law that they abuse that discretion and so that seems like a very different case from and frankly even the hall and the florida line of cases aren't that everybody gets it just based on whatever they found out about whatever they found out about it there's still this diligence and again we're still back to manno we've gone around in circles on this something more than nothing and i in this far i haven't heard anything more than nothing against the the the record before the characterized it particularly serious matter well but what of it what indications are they didn't take it seriously i mean they consider it equitable tolling to consider diligence the fact that they said argue window doesn't change that they considered it and so this what abuse of discretion do we find here what can overcome this very deferential review says which can you point us to that shows being seriously consider it severed set or just because she lost all the immigration judge star her own lawyer put in the motion that said october twenty fourth twenty or even any i mean december eighteenth if she discovered it before then which is certainly within the recently of january prime she's done no matter how much we spot or how much we give or because the ninety day deadline is a very short deadline and it can't possibly be any longer than ninety days from when she actually found out a date we still don't know