all right then we're ready to call our next case our kosa sanchez versus attorney general and we have mr gonzales mr hogan here with us we'll go ahead and ask you to question here today is whether the immigration judges and the board of immigration appeals have the ability to administratively close cases i'd like to st say that what what administrative closure is not and we would submit that it's not a part of the the i  that is because i think it's a valuable tool that has been helpful to the ration judges that are the experts there the soldiers there the plumbers are the guys right in the front lines and the board of immigration appeals who have to deal with the nd level of these cases and i'm sure a i don't think anybody's arguing that the immigration judges don't like it right i think the argument administratively could be a useful tool for them to have mr gonzales i think what we're what we're hearing from the other side is that the the castro tom decision is something that the attorney general certainly had the power to do because it is peculiarly within the purview of the executive branch to decide how to process cases and that and that that processing decision whether or not you can administratively close or not is something that the attorney general is free to opine about and to say no you don't get to do this i don't think you're allowed to do this now i understand your argument which is now the stat statute the regs say that you can't do this but would you concede or do you concede that there are some ambiguity or do you say that there's no ambiguity at all in the regulations i think  was so here's here here we here we find you find yourself in an interesting spot don't you mr contest if that's true how do we how do we account for the fact that very well respected thoughtful and you've got now justice barrett saying with the th circuit you know this is not right and you get the four circuit on your site too but but there you go you've got a circuit split can it really be the case that it's an ambiguous when you've got well our position is that there's not a because of the language set forth exercise their independent judgment and discretion taking any action any act would be anything that's judicial unless it's taken away and i know the attorney general has now set forth regulations trying to  to take that away and take away some other tools that the judges use immigration judges use and the board does as well and you that's that has nothing to do with us right i mean i think everybody's maybe i'm wrong about would speak to but those aren't retroactive so they don't control here but you certainly can see that with regular with new regulations in place i mean i think your whole point was that these regulations that were in existence at the time think gave i chase the power to do what you said you could do right yes or no so can you can you give me your your argument regarding the text then because let's assume we agree this is a matter of interpretation keyser applies what is your text to argument then that this power exists speech and ground me not just in the a but the folsom clause of any action consistent with their authorities that is appropriate and nest necessary for the disposition of cases right because that's that's got to be relevant to your argument that this power is tied it seems to the disposition of cases so help me understand your textual argument here thank you your honor to get to our just position in many cases something else has to happen that's outside the control of the attorney general and his designees the board or or an immigration judge the classic example that's been used in egypt all told the three prior case of decide is in the seven th  and six but most importantly here is a provisional waiver section or department of homeland security one of the parties that goes before the immigration court their own regulations require someone to be able to apply for a provisional waiver that the proceedings be administratively close through enforcement rules currently or at least under the under their prior administration prosecutorial discretion an administrative closure requests by the department of homeland security were stopped  but not used in and they were as they were in previous administrations additionally there are instances of many times where the disposition can't be done until another agency acts or another part of the department of homeland security acts so let me let me just let me interrupt you there if i could let's suppose that's right and that there are regulations that require not sure than anyone would disagree with that but and effectively many can to manage continuance would seem to provide the same sort of relief so why why doesn't that work your honor with regards to the extension of that's available before the board of immigration appeals but i have a power of at what you know you've asked so i'll give my examples with regards to another agency be it the u s marshals or be at the state we don't know when his availability is going to be big and that crime that can that case is dispositive on his immigration case  we've had that data specifically here in new jersey where someone is in removal proceedings then they have a criminal charge sometimes they have to battle to be able to get back it to state court to address their case and then be detained their have their case resolved but these detained in state court while still has cases pending before the immigration court we'd never know why can't a contempt why can't a continuance handle that sometimes authorities and the act of regulations as is appropriate and necessary for the disposition of the case is an administrative closure disposition no it is not ok if that's true and i think you're right it's not a disposition how how is it that you can argue that the language take any action resolves this when the take any action is specifically geared toward linked to the disposition of the case you're allowed to take any action to dispose of the case that doesn't mean you're allowed to take any action at all you're only allowed to take any action that will allow the disposition of the case i understand the government to be making the argument that this is you know these administrative closures are not leading to the disposition there i could actually contrary to it they go into this limbo and never emerge and what's your response when you're under recount these as can the respondents the respective respondents in each and every one of these cases i can hear you saying if it's on the government's the government's fault that they don't seek to get these recounts are well it's we're we're talking about two different agencies and sometimes it is part of homeland security they have to recount to their cases they've done it before i know as as a as a got going on that same point mr gonzales if we're talking about the burden on the parties to come forward to recalibrate case how is the administrative judge or the immigration judge man using that tool to manage their calendar by administratively closing it seems to me the judges relinquishing his management of the case to the parties who would have to come back to closures that allows the judge the immigration judges to concentrate on the cases that are prioritized by the department of homeland security to adjudicate so i maybe there should be a instruction to the judges as to how to deal with the administratively close cases while they're dealing with the backlog of active cases but understand anything to me the regulation we're talking about is focused on disposition of the case that he and not the management of the entire court docket it's the disposition of this case in hand and is a cases administrative lee closed  the only went according to what i'm hearing you say the always gets back in front of the judges if one of the parties kicks it back the judge really loses overside the back case but in the continuance circumstances that were judge continuance i need to check my records as to whether there is a suicide by the power of the immigration judges to read calendar i would submit that if there is that may be taken away by the new regulations  well even if there were a stew spots a power in the regs as a matter of practice that you would agree when she did that in fact the cases are only recount or upon motion and countering has a burden to show they should be recalibrated there are some like a good cause things in there that's part of what motivated that attorney general to do what he did in castro and that basically that because there is no constitutional issue or a compelling circumstances that would preclude the attorney general from issuing castro talk that that's the main reason the court should affirm it but turning to the i mean we you can't you can't really avoid keyser can you i mean what you do d is good this is the attorney general giving an interpretation of a regulation that's exactly keyser land right of the case meaning it appears to mean the case in hand caseload generally right and gentle rance question imply or one could take it now let me ask you what is inconsistent in saying administrative closure is in fact helpful to the disposition of this case because of the particular circumstances of this case in other words  mr gonzales just gave an example of one you've got parallel proceedings in state court how those proceedings turn out may very well affect the correct disposition of the immigration case nobody knows how long it's going to take but it's going to take some time let's administratively close this come back when that's done and then we have a sound basis for proceeding instead of spinning our wheels doing something that doesn't make sense when you get something different out of the state that will alter the field of play i think that now i didn't do his elegant a job as he did in laying out his example but i think that to be his and his example why isn't something like that exactly geared to the sensible continuance doesn't mean you couldn't have administrative closure in fact for thirty years it was happening the whole point of this is it was happening so much it was driving the attorney general crazy right eventually the attorney general said you got to stop doing it it wasn't because the regs didn't allow for it it seems otherwise you'd have to believe people were asleep at the switch for literally decades so it seems like with the attorney general's real problem is is that an authority that was granted was not being used wisely right isn't that the problem that the attorney general was getting now you've abused the authority not that you didn't have the authority you abuse the authority isn't that the problem that was pointed out in our one of our letter briefs we've a supreme court case with pain the fact that prior attorney generals may have been doing something that they didn't have the authority to do is not a reason to continue to keep doing it well but it could be a reason to look at it and say maybe at a minimum maybe there's ambiguity is it possible that every tourney general that occupied that office for more than three decades was not just completely misguided and couldn't read the plain language that was so an ambiguous as to lead to castro term maybe at a minimum there's ambiguity about whether this is suited to the disposition of the case and if there isn't you're in keizer land then you've got to wrestle with the meaning and whether what was done here was in fact something that's due deference but let me pursue something here you in your briefing argue that that historically overbroad usage of disclosure  evidence that the tool is not appropriate and necessary if i read your briefing correctly that i get back to part right away does this takes me back to my point which i really would you to wrestle with isn't that an argument that speaks to abuse of authority explicitly not to absence of the story as a logical matter i'm not sure how the level of usage tells us anything about appropriate and necessary and may tell you that they've got a bad judgement about what's appropriate and necessary but it doesn't tell you that they don't have the power to do what is appropriate and necessary  we're talking past each other but i think you're actually making you're making the point i'm trying to question you about that's a statement that's an assertion that you hey you're using this tool incorrectly and isn't a statement that you don't have the tool that's like telling somebody that you know if you use that screwdriver like it's a hammer that's a bad thing but that doesn't mean that they don't actually have the screwdriver they've got the tool they may misuse it but they've got the tool i'm not sure i follow the logic when the the government comes and says look i'm innocent i g s have been have been using this poorly don't let them do it anymore well they  be doing it poorly they answer is to train them to do it correctly or to change the regulation is you having to take two away but it seems ought to say yeah you never had that tool to start with when they've had the tool and they've been no well all right then i don't know whether there's anything further that you'd like to tell us mr hogan but i don't i don't have any further questions for you unless you're summing up  know you're out of the government all right thank you very much have i wanted to go back of other examples of where administrate of closure really is necessary for the open and disposition of cases besides us i think you can go as recent as a case of the court decided last week in the coma versus attorney general where to actually we had the respond it was delayed detained and then remov judges if there's no administrative closure likewise an example when someone's not available besides my criminal that make my criminal alien i have members that were in the armed services that are in active duty talk about it in relation to this case and r r r r petitioner in this case it's necessity in this case he stands with a pending at application previously he had received aka three times it was terminated because of the open charges the record of proceedings and again the charge was no bil referred to in the th circuit i'm sorry the th or circuit case we may have that issue in our client's case because we still don't have a dis a disposition on the docket case where a doctor request well he still does perhaps a different woman but she's a us citizen and they've parlays into many things he would then if once he's married would be able to be eligible for cancellation o