[00:00:03] Speaker 00:
Whenever you're ready, counsel.

[00:00:05] Speaker 01:
Thank you. Good morning, your honors. May it please the court. My name is Jessica Enlayu, and I represent the petitioner in this matter, Jesus Garcia Corrales. I'd like to reserve two minutes for rebuttal.

[00:00:16] Speaker 01:
Your honors, the board in this matter erred as a matter of law by misconstruing petitioner's motion to reopen as a motion to reconsider, despite the motion being supported by new and previously unavailable evidence.

[00:00:30] Speaker 01:
After the board dismissed the appeal in April of 2024, prior counsel did exactly what the board has recognized in other cases. He filed a motion to accept a late appeal within a 30-day period. However, the board rejected that filing on May 30th, stating that there was no appeal pending and advising prior counsel to instead file a motion to reopen or a motion to reconsider. That matters.

[00:00:55] Speaker 03:
Excuse me. Sorry. Where is that order in the record? I was looking for it earlier today, one or the other, and I couldn't find it.

[00:01:08] Speaker 01:
Judge, it's on AR 17 and sorry, AR 16 specifically. It's in small print at the bottom. It says that there currently is no pending case before the BIA. A decision was rendered on 4-30-2024, referencing the April 30th dismissal of the appeal as untimely. And it says you may wish to file a motion to reopen or reconsider.

[00:01:30] Speaker 00:
Well, and I take it it must have treated it as a motion to reconsider because the board applied the statute of limitations, if you will. the time period requirement for that kind of motion.

[00:01:45] Speaker 01:
Yes, Judge. It's really actually not clear. So, again, I do think the timing on this is kind of important in this case because on April 30th, the board dismissed the appeal as untimely. Right. On May 30th, he files a motion to accept an untimely appeal, and that was rejected. And that's not in front of us at the moment. That is not in front of you at this moment.

[00:02:07] Speaker 00:
So then when did he then file? The motion, however we call it.

[00:02:11] Speaker 01:
Then it gets us to the motion to reopen, which was filed on July 18th. I only reference it because he did file within a 30-day, and there is court precedent both by the BIA and the circuit where the BIA has construed a motion for late filing as a motion to reconsider, and had they done that, it would have been timely.

[00:02:29] Speaker 00:
Okay, but if we were to determine... that the motion is actually a motion to reopen, we don't have to worry about whether the motion to file late appeal is a motion for reconsideration. That's correct, Judge, because the motion- How was the motion labeled?

[00:02:43] Speaker 01:
The motion was labeled as a motion to reopen. Sorry, and just to clarify, we're referencing the July 18th motion.

[00:02:49] Speaker 00:
The one that would be timely if treated as a motion to reopen. How was it labeled?

[00:02:55] Speaker 01:
It was labeled as a motion to reopen.

[00:02:57] Speaker 00:
And then in rejecting that motion, if you will, What did the board say?

[00:03:04] Speaker 01:
Judge, it said that it construed the motion as a motion to reconsider and found it to be untimely.

[00:03:09] Speaker 00:
And where did it say that? Where in the record again?

[00:03:11] Speaker 01:
Oh, Judge, I can... Because I think that's the question that... Oh, I apologize.

[00:03:15] Speaker 00:
Judge Berzon was asking.

[00:03:16] Speaker 01:
That's on AR 3 and 4.

[00:03:19] Speaker 00:
Right. So they actually said we're treating it as a motion to reconsider.

[00:03:23] Speaker 01:
And finding it untimely.

[00:03:24] Speaker 00:
Yes. Okay. Go on. I'm sorry. I just wanted to get... No, that's okay.

[00:03:28] Speaker 01:
Because I do think like the procedural posture of this is interesting. Because it's rejected on May 30th, and the board then advises to file a motion to reopen or reconsider, and then prior counsel does proceed to file a timely motion to reconsider within that 90-day prescribed period, but then the board turns around and then denies the motion as untimely, stating that it is a motion to reconsider and cites matter of Lopez.

[00:03:54] Speaker 00:
Well, but absent the advice, if you'd filed something labeled motion to reconsider...

[00:04:02] Speaker 00:
More than 30 days later, it would appear to be facially untimely, right?

[00:04:06] Speaker 01:
Yes. Yes, Judge.

[00:04:07] Speaker 00:
So my problem with this case is I want to ask the government about this. It's labeled as a motion to reopen.

[00:04:16] Speaker 01:
And that's our position, Judge?

[00:04:17] Speaker 00:
And it appears to be a motion to reopen because it relies on factors not in front of the board. So I guess I'm raising this so that the government will be aware of my concern on it.

[00:04:34] Speaker 01:
And, Judge, that is really our position. And like I said, I only mentioned the motion to reconsider being rejected because in the face of that rejection, counsel reasonably preceded that point with filing a motion to reopen. It was supported by new evidence that was not available at the time of filing.

[00:04:51] Speaker 03:
But the motion to file a late appeal did include the same information, is that right?

[00:04:59] Speaker 01:
It's that's unclear your honor as part of the record because it was rejected actually the attachments of whatever prior counsel filed is not part of this record. So we only know that he did file it and that it was rejected.

[00:05:11] Speaker 00:
And so it for a lot of reasons you don't need us to meet it be difficult for us to go back to that motion and say oh it was clearly a motion to reconsider if it was and it was backed by the same things you later filed in the motion to reopen. it would be an inappropriate motion to reconsider, wouldn't it? It could be, yeah. Reconsideration has to be that the board made a mistake on the evidence before at the time.

[00:05:37] Speaker 03:
But if you can relabel it in one direction, you can probably relabel it in the other. The other thing I was going to ask is that the board, despite insisting that this was a motion to reconsider, and despite the definition of the motion to reconsider as being based on the existing record, and only contending that the board erred in a matter of law and fact, did consider the new evidence or recited the new evidence in its opinion, and then it didn't say anything much about it except this isn't a good enough reason.

[00:06:12] Speaker 03:
But it was sort of an anomaly because despite calling it a motion to reconsider it, it did consider the evidence. Or it did reference the evidence, whether it considered it, one can't tell.

[00:06:23] Speaker 01:
Yeah, so it does reference the new unavailable evidence, but even in that decision, I think, even if we were to look at that, I think this requires remand because the BIA then uses the wrong or at least an unclear legal standard. It references exceptional circumstances versus extraordinary circumstances, and then it doesn't provide any reason explanation of why it reached this conclusion that even if it was construed as a motion to reopen, they just issue a conclusion that it's not sufficient, but it doesn't go to at all about, well, and it referenced the rule, which is diligence, which goes to the equitable tolling and extraordinary circumstances, but it doesn't explain why a 42 delay is not extraordinary and also doesn't address why prior counsel's efforts weren't diligent when as soon as it was dismissed, he does file a motion within 30 days, that's part of the BIA's record, and then does file a timely motion to reopen.

[00:07:21] Speaker 00:
Is it your position that extraordinary is different than exceptional?

[00:07:25] Speaker 01:
Yes. I think under this, or sorry, under the BIA, they have made distinctions kind of raising exceptional circumstances and as slightly higher. In the matter of Morales-Morales specifically, it noted short delays by overnight services are generally not exceptional circumstances to warrant certification authority, so that seems to go under certification, where extraordinary circumstances seem to be lower, which includes situations where reasonable expectations about events occurrence are interrupted. And applying that to this case, we would reasonably expect where prior counsel mailed the appeal, I think 11 or 12 days prior to the appeal deadline, and it was delayed by 42 days.

[00:08:03] Speaker 00:
Well, not only mailed it, mailed it by certified mail.

[00:08:05] Speaker 01:
Certified mail, that's correct.

[00:08:07] Speaker 00:
You wanted to save a couple minutes for rebuttal. I just wanted to remind you. Make your own decisions about what it is.

[00:08:12] Speaker 01:
That's okay. Are there any further questions?

[00:08:15] Speaker 01:
No questions here.

[00:08:17] Speaker 00:
No? Thank you. No? Okay, we'll hear from the government. And Ms. Murcia, you've been now introduced twice today, so...

[00:08:28] Speaker 03:
I can't hear you.

[00:08:29] Speaker 02:
Oh, I'm sorry. I was just saying when I heard my name earlier, I believe Judge Hurwitz called the prior counsel by Ms. Murcia, and I thought maybe she had the same last name, but I'm not going to properly introduce myself now. Please, the court, lease us mercy of the Office of Immigration and Legation for the respondent. The court should deny the petition for review. To address the first circumstance that your judges were speaking about earlier, The Board properly construed Mr. Garcia-Carlos' motion as a motion to reconsider its summary.

[00:09:00] Speaker 00:
Why? I mean, I've read your regulations, and they are, I think, uncommonly clear for agency regulations. And they say a motion to reconsider addresses mistakes that the Board made at the time of the prior decision.

[00:09:19] Speaker 00:
And motions for reopen bring to the attention of the Board information not previously brought to the attention of the Board. And the Board, and just I want to go on here. It may well be that the Board could have had a reason for denying a motion to reopen, but the only reason it gave in this case was that it was untimely, correct? Yes. And so, it just strikes me on its face this is a motion to reopen. It was labeled as such. It brought to the Board's attention information not before the board at a time of dismissal.

[00:09:55] Speaker 00:
So why isn't it governed by the time limits that deal with a motion to reopen?

[00:09:59] Speaker 02:
So I think it's sort of made clear about the history of the place of filing rule that we sort of go through in our process.

[00:10:08] Speaker 00:
You take a shot at the place of filing rule, Judge Burson.

[00:10:11] Speaker 03:
It was filed where it was supposed to be filed, before the board.

[00:10:16] Speaker 02:
I'm sorry. I'm sorry.

[00:10:20] Speaker 03:
Place of filing rule is about where you file it.

[00:10:22] Speaker 02:
Yes.

[00:10:22] Speaker 03:
They were supposed to file it before the board. They did file it before the board. So what's the problem?

[00:10:27] Speaker 02:
Well, in this circumstances, at least in matter of...

[00:10:32] Speaker 02:
GOING THROUGH THE HISTORY OF MATTER-MAL DENIAL.

[00:10:35] Speaker 03:
LET ME JUST STOP FOR A MINUTE. NOTHING IN THE PLACE OF FILING REGULATION SAYS ANYTHING ABOUT WHAT YOU CALL THIS MOTION THAT YOU FILE AND WHAT KIND OF MOTION YOU FILE BEFORE THE BOARD, RIGHT? IT JUST SAYS YOU HAVE TO FILE BEFORE THE BOARD.

[00:10:47] Speaker 02:
THAT'S NOT IN THE REGULATION. I'M SORRY. THERE'S NOTHING SPECIFIC IN THE REGULATIONS EXCEPT TO DESCRIBE WHAT A MOTION TO RECONSIDER OR A MOTION TO REOPEN IS.

[00:10:54] Speaker 00:
THE BOARD TOLD THEM TO FILE A SUBSEQUENT MOTION WHETHER FOR RECONSIDERATION OR REOPENING With the board. It actually issued an order that said that, didn't it? Well, there's a distinction that I think that... Well, no, just answer my question before you tell me why it's irrelevant.

[00:11:11] Speaker 02:
I'm sorry, maybe.

[00:11:12] Speaker 00:
Didn't the board, in an order, say, if you don't like this dismissal, you may file a motion for reconsideration or reopening with the board?

[00:11:23] Speaker 02:
So there are an initial April... Did they say that or not?

[00:11:27] Speaker 02:
They said motion to reopen or reconsider and they quoted maldenial.

[00:11:31] Speaker 00:
Okay, but they told, now we're talking about the place of filing rule. They told them to file it with the board, did they not?

[00:11:38] Speaker 02:
They said, well, in the initial summary dismissal, they say the immigration judge as well. They do make a distinction in the initial April 30th, 2024 summary dismissal. They say, these are the rules. You filed this at the board and you filed this at the immigration judge.

[00:11:56] Speaker 00:
And what you file with the board, they said. were motions for reconsideration or motions to reopen. Did they not?

[00:12:02] Speaker 02:
I believe in the April 30th, 2024 thing, 24th decision, excuse me, a party wishing to file a motion in this case challenging the finding that the appeal was untimely must file the motion with the board.

[00:12:15] Speaker 00:
With the board, so. Whatever you call this motion, I have no idea why the place of filing rule has any relevance because that's a rule that directs you whether to file it with the IJ or the board. And the board ordered that the motion be filed with the board, did it not? Yes?

[00:12:34] Speaker 00:
Yes?

[00:12:34] Speaker 02:
They said the motion, but they didn't specify if it has to be a motion to reconsider.

[00:12:38] Speaker 00:
Should a motion for reconsideration? Well, let me just, because I'm mystified by the place of filing argument in this case.

[00:12:45] Speaker 00:
Whether it's a motion for reconsideration or reopening, it had to be filed with the board, did it not?

[00:12:52] Speaker 02:
It had to be.

[00:12:53] Speaker 00:
And they filed it with the board, did they not?

[00:12:56] Speaker 02:
It depends on what the motion.

[00:12:57] Speaker 00:
No, no, no, no. They filed all their motions with the board. I mean, there's a yes or no answer to that question. It doesn't depend. We know where they were filed. We have them in the record. They were filed with the board, were they not?

[00:13:10] Speaker 02:
They were all filed with the board.

[00:13:12] Speaker 00:
Okay.

[00:13:13] Speaker 00:
Since the place of filing rule deals with where things are filed, and you all agree these things were filed in the appropriate place, what in the world does, now you can explain, what in the world does this rule have anything to do with this case?

[00:13:28] Speaker 02:
So the place of filing rule is essentially like, directs the filing according to what is being challenged. So they say that if you're going to be challenging, for example, the merits of the immigration judge's decision, which was decided by the immigration judge, not before the board, you'd be properly filing a motion to reopen before the immigration judge.

[00:13:49] Speaker 03:
And that's not what they were doing here.

[00:13:51] Speaker 02:
That's not what they were doing here. What they were doing was... That's why it had to be filed with the board, and it was filed with the board. But the board specified that it was a motion to reconsider.

[00:14:01] Speaker 00:
Admittedly... Well, now, did we just... I'm just... You're losing me on this, and maybe you'll never get me back.

[00:14:08] Speaker 02:
No.

[00:14:08] Speaker 00:
But... Right. The place of filing rule is about where a motion should be filed, correct? Yes. And in this case, the motion was filed with all the motions, whether you treat the initial motion, the motion to accept late filing or the eventual motion to reopen were filed with the board, were they not?

[00:14:30] Speaker 02:
Yes.

[00:14:30] Speaker 00:
Do you contend they should have been filed someplace else?

[00:14:33] Speaker 02:
On this specific idea of the summary dismissal challenge, They should have been filed with the board.

[00:14:39] Speaker 00:
Okay, so then why are we worried about the place of filing rule at all?

[00:14:44] Speaker 02:
Because whether or not it's a motion to reconsider or a motion to reopen here, at least council has made that relevant. However, ultimately, it's not relevant.

[00:14:52] Speaker 03:
Excuse me. So is your position essentially that you can't file a motion to reopen with additional evidence for the board to consider if the board denies a filing of a brief as late? They can't do it?

[00:15:08] Speaker 02:
The board had specified that to challenge a summary dismissal, an untimely filing of a summary dismissal, the proper vehicle is a motion to reconsider.

[00:15:18] Speaker 00:
Where did it say? Where's the board said that?

[00:15:20] Speaker 02:
In matter of Lopez.

[00:15:22] Speaker 03:
Because that was the facts in that case. I mean, that was a case in which they were filing a motion to reconsider on the basis of what they had decided. But did they ever say anywhere that if you want us to look at new evidence, it still has to be a motion to reconsider, even though our regulations say you can't do that in a motion to reconsider?

[00:15:41] Speaker 02:
The board has basically said, what is the best vehicle for challenging the the summary dismissal of an untimely filing.

[00:15:49] Speaker 00:
So has the board said that if you're challenging a dismissal based on untimely filing, based on new evidence, you must use a motion to reconsider?

[00:16:01] Speaker 02:
For untimely filing, if you're going to be raising the concept of challenging a dismissal.

[00:16:07] Speaker 00:
So a motion to reopen. based on new facts, is unavailable. Because motions to reconsider get turned down, as this board turned down this one, by saying you haven't pointed to any errors in the board's decision.

[00:16:20] Speaker 00:
So my question is, what if you have a truly catastrophic thing, truly extraordinary, truly unusual, you wouldn't dispute it? A nuclear bomb went off when the guy was putting the thing in the post office.

[00:16:36] Speaker 00:
or when he was handing it into the board, somebody shot him and he couldn't continue to hand it in. You couldn't file a motion for reconsideration based on that, could you?

[00:16:45] Speaker 02:
The board essentially says yes.

[00:16:47] Speaker 00:
Don't tell me what the board essentially said.

[00:16:50] Speaker 00:
Isn't it true you can't file a motion for reconsideration based on evidence that was not before the board?

[00:16:57] Speaker 02:
The board says yes in matter of Lopez that you can raise the question of equitable tooling in a motion to reconsider.

[00:17:03] Speaker 00:
No, but that's a different issue. That's it. That's not based on information not before the board.

[00:17:08] Speaker 02:
It essentially is. I mean, equitable tolling is the idea that I did not timely file on the basis of .

[00:17:17] Speaker 03:
If it said that, it was inconsistent with its own very clear regulations about what you can do in a motion to reconsider, right?

[00:17:27] Speaker 02:
It is essentially saying that the board, when it looked at, whether or not it was untimely filed, perhaps equitable tolling would provide a mechanism of law in which it was incorrect to not accept it as timely filed.

[00:17:47] Speaker 02:
That is essentially what matter of Lopez says.

[00:17:50] Speaker 03:
I may say, but the regulations preclude it if you're adding new evidence, because the regulations say that you can't file a motion to reconsider with new evidence.

[00:18:00] Speaker 02:
Again, perhaps either a motion to reconsider or a motion to reopen are perhaps imperfect for raising the issue of equitable tolling, but the board has chosen a motion to reconsider. And in this particular case, yes, they did initially find a motion to reconsider in time.

[00:18:21] Speaker 00:
If that's what the board had chosen, then how could it possibly turn down this one because it didn't, specify any error in the board's decision.

[00:18:31] Speaker 02:
That's not what it did, though.

[00:18:32] Speaker 00:
That's what they said.

[00:18:33] Speaker 02:
No. I'm sorry.

[00:18:35] Speaker 00:
I mean, they turned it down as untimely.

[00:18:37] Speaker 02:
Respectfully.

[00:18:38] Speaker 00:
They turned it down as untimely.

[00:18:39] Speaker 02:
Your Honor, they deny it as untimely, but they say even assuming, let's just say if counsel is assuming that that the motion to reconsider was timely filed, yes, we will consider Admiral Tolleen as if it was timely filed.

[00:18:55] Speaker 00:
Okay, now I want to take you over here, and I apologize to my colleagues, but let's assume that for a moment that this was timely filed and they were taking it up on demerits, because they seem to say even if it were timely filed, we would turn it down.

[00:19:12] Speaker 00:
I'm having some difficulty understanding why a notice of appeal mailed 11 days before the deadline, which arrives 42 days later, is not extraordinary. It seems to me quite out of the ordinary. And they didn't explain why they didn't think it was extraordinary. Aren't they required under that circumstance where it's such a rare occurrence to at least give some explanation?

[00:19:42] Speaker 02:
Well, Your Honor, here the board does essentially explain it. It takes all of the evidence that's being presented.

[00:19:49] Speaker 00:
All of the evidence which they treat as true.

[00:19:51] Speaker 02:
Well, Matter of Morales Morales directly controls here.

[00:19:55] Speaker 02:
Morales Morales essentially says if you're sending it regular mail, even if it's inadvertent, which it wasn't inadvertent here, Matter of Morales Morales says that's not going to be extraordinary circumstances.

[00:20:09] Speaker 00:
Well, did Matter of Morales deal with something that was sent 11 days before the deadline and arrived 42 days later?

[00:20:16] Speaker 02:
It was, I believe that it was sent only a couple days before the deadline.

[00:20:21] Speaker 00:
Yeah, I'm saying that strikes me as a perfectly, under those facts, you can't claim, my God, I thought it would get there in two days. But it got there 42 days later. That strikes me as the definition. Nobody's a fan of the U.S. Postal Service, but even under the Postal Service's performance, That's an extraordinary circumstance, isn't it?

[00:20:42] Speaker 02:
I'm sorry, I'm over time, but I hope you don't mind if I answer this. Your Honor, I would make the analogy that maybe we would be having a different conversation. He sent it by certified mail, so at some point he would have to realize he didn't get it. So let's just say he realized this two days after the deadline, three days, four days, five days. whenever it was. He didn't realize this until 48 days after. So the question should rather be, if you are sending this 10 days before the deadline and you are not going to look into guaranteed delivery service, instead you're just going to send it regular mail and you're going to take the risk that it is not delivered on time, One day, two days, three days, four days, five days.

[00:21:26] Speaker 02:
In this circumstances, it ended up 42 days afterwards.

[00:21:30] Speaker 03:
So the board could have, if the board had considered it. First of all, the board did say that the, it was not, the motion to reconsider was denied because it didn't allege any error of fact or law in our prior decision to determine any file that had any timely appeal.

[00:21:50] Speaker 03:
Then it states what the new evidence was. And then he says the evidence is not adequate to demonstrate that they could have said what you just said. They should have sent it by some other way or that they should have checked the certified mail. It could have said various things, but they said nothing.

[00:22:14] Speaker 02:
Here they reviewed the evidence that it was sent by a non-guaranteed delivery service.

[00:22:19] Speaker 03:
In their own theory, that was by grace because they did not allege any error of fact or law in a prior decision determining that they filed an untimely appeal. So why they even looked at the evidence, why they recite the evidence, they don't explain.

[00:22:34] Speaker 03:
And because on their own construction of what was going on, it wasn't even pertinent.

[00:22:39] Speaker 02:
Your Honor, I would read the Board decision a little differently if I may. I think that the first section saying that there's no error of law in fact is that simply that there's no error of law in fact that it was untimely filed. The second question is the equitable tolling question in which they do consider the additional evidence on the motion to reconsider.

[00:23:01] Speaker 02:
I think that is, there's essentially two parts to that decision. There's no error in law in fact that it was untimely filed. I don't think anybody disagrees it was filed 42 days after the filing deadline. But then the question is, was there extraordinary circumstances that excused that filing under equitable tolling. And the agency did consider that evidence. They cite the evidence, and then they cite matter of Morales Morales, which essentially states that non-guaranteed delivery, even if it's inadvertent, you sent it by regular mail, is not going to be in extraordinary circumstances.

[00:23:38] Speaker 02:
And that's what happened here.

[00:23:40] Speaker 00:
Thank you, counsel. I think we've taken you well over, and I appreciate your patience with us. Thank you. I think you have a little bit of time left for rebuttal.

[00:23:52] Speaker 01:
Thank you, Your Honors. The only things that I briefly just want to point out is that the department in this case heavily relies on Matter of Lopez, but does fail to explain that there are this court's precedent that came out after. So Matter of Lopez was 1999, that this court in 2003 clarified what a motion to reconsider and a motion to reopen were. And the matter of Lopez's decision was more a jurisdictional question before the BIA. Who has the authority to hear that? And it was answered in the context of a motion to reconsider.

[00:24:24] Speaker 01:
So I feel that the department doesn't really address what this court's precedent then says after this, which does clarify.

[00:24:31] Speaker 00:
Tell us which cases you rely on.

[00:24:32] Speaker 01:
Oh, sorry, Judge. I'm relying on, I'm not going to say this correctly, Judge.

[00:24:37] Speaker 00:
Good, I was hoping you would say it correctly. And I could sound alerted later.

[00:24:40] Speaker 01:
Yeah, is it Aragonian Briones? SO, SORRY.

[00:24:44] Speaker 03:
I THOUGHT IT WAS THE CASE YOU WERE I THOUGHT IT WAS THE CASE YOU WERE REFERRING TO. REFERRING TO. YES, JUDGE. YES, JUDGE.

[00:24:49] Speaker 01:
AND THEN I ALSO WANT TO POINT OUT AND THEN I ALSO WANT TO POINT OUT THAT THIS COURT'S PRECEDENT THAT THIS COURT'S PRECEDENT ALSO, OH, SORRY, THAT ALSO, OH, SORRY, THAT COURT PRECEDENT IS WHAT I'M RELYING COURT PRECEDENT IS WHAT I'M RELYING TO SAY IS THAT THE RESPONDENT IN TO SAY IS THAT THE RESPONDENT IN PRIOR COUNCIL SHOULD USE REASONABLE PRIOR COUNCIL SHOULD USE REASONABLE DILIGENT, NOT PERFECT FORESIGHT. In the matter of Morales Morales, the court, the respondent in that case sent it two days prior. And in this case, as we've already noted, the prior counsel sent it 11 days prior. There's nothing in any sort of court precedent that says that you have to send it by guaranteed mail. We're supposed to be using reasonable...

[00:25:21] Speaker 01:
Diligence, which this counsel did, sent it by certified mail. And as for the equitable tolling, we've already stated this court's precedent states that they should give a reasoned explanation, and that is not provided here. Why the counsel's diligence was not sufficient, sending certified 11 days prior.

[00:25:38] Speaker 03:
Suppose they had said what your opposing counsel said. They didn't, but suppose they had. That is, that was sent certified mail. They should have checked at some point whether it was received.

[00:25:51] Speaker 03:
and so they weren't diligent.

[00:25:54] Speaker 01:
Well, Judge, I think, Your Honor, that the prior counsel and I would assert that he was relying on the U.S. Postal Service that said it was going to be delivered within two to five days.

[00:26:05] Speaker 03:
But he said in certified mail, presumably for a reason, which was so that he could track it, and he could have tracked it.

[00:26:13] Speaker 01:
That's correct, Judge. He could have tracked it. It appears that he did not in this case and was not made aware that it wasn't delivered

[00:26:20] Speaker 00:
Until the 42 days after I'm not a time anything to anybody have additional questions If they don't thank you for both sides for their arguments and briefing and I guess for everyone I would emphasize the importance of not sending notices of appeal by mail Thank you.

[00:26:36] Speaker 01:
Thank you so much honors. We just asked this court to be done. Thank you Thank you.

[00:26:41] Speaker 00:
We're gonna take a short break now. Let's say ten minutes and we will resume with the next case on the calendar.

[00:26:51] Speaker 00:
Thank you.