court we in his case to the board for consideration of the application of the sessions to his case as he was issued a period of notice to appear as described in that case when it did not contain the date and time or even the location of the immigration rules i think in this case yes and the reason being is that the poster part of our regulations under these circumstances that are presented here should not be allowed to foreclose the ability of an alien to challenge him down or remove order expression when the board however should you find that the supreme court decision would be relevant to this case it would be up to the court's decision whether or not he would want to stay issued a decision i know that the oral argument in this case is going to be heard by the end of this month case is otherwise controlled by just what is there left for this panel to do we proceed they'll hold i wouldn't contend that i'm saying that this is otherwise controlled by decide i think there is cases that we  specifically that's that's which got to come to grips with medallions this side has got this very issue in front of the court the court says that is something that the the b i a is  is permitted to have as its own rule it distinguishes personal aspinall and before it ever gets to talking about or deference or anything like that it says let's pursue this before you say that relied on saying what i just quoted to you comes before there's any miniatures aying at all if it's only after that holding is stated that the court says our decision holding before saying anything about j at all and then it says there's also support in other circuits for this for where we end up today and short it's not depending on jang for its holding it's simply referencing it as further support which is the better reading of the case i believe that it's relying on vain for its mean holding and also allowing for our deference which is the two issues that i'm bringing forward it's been long going that other circuit courts have given deference through our deference to the post apart from bar in other cases what do we make of the word further there than our decision finds further support saying because it looks like what the court has said is this is a holding and we're we're reaching this independent of a thing that any other circuit has said we look at our own decision and presto it's been all we look at the statute we make a distinction and we say personal has been all is limited to those cases where the statutory right is that issue it's not at issue here don what do we make of the words or decision finds further supported jack when you when you see depends on how so well it depends on jane in what jane had found it was they were relying on our deference but said that they had they were working with a clean slate the second court might have come to a different decision however they recognize that the board even though they have basically had a carte blanche when they don't make exceptions to the post of heart or bar rule in  a decision that was actually published by the board and two thousand and nine and in my bonus twenty five i know and decision of the southern the court in that case that said you know what we understand that there's been sort of and are growing as you are the law when you came to and i ability to entertain a motion to reopen for a case where someone was deported with an end of censure order that's based on lack of notice there and they found that there was a cowboy issue regarding due process that may allow the  maybe we would be in a circumstance where we'd have to say oh we better wait on the kaiser because it could change everything but we're not the second circuit if we just reference it as other courts ended up in the same spot that we do we pull in as the home as the basis for our stated holding that the other court may have said i don't know that you would have to case the argument that i'm making today about the fact that on the one hand the board tries to say that and using our deference that you should allow us to basically say the post partum bar you can't over war is should be given definitely circumstances but then on the other you have the board saying oh well but in this case we're going to make an exception you're ending up with an arbitrary capricious situation where on the one case they recognize that there's a due process violation for someone who is deported with an innocent order that could be making a claim based on lack of notice or they're going to allow an i j to reopen the case and the situation at hand here we have a petitioner who his conviction that he had was a youthful offender conviction i mean new york law that the underlying i so haven't we put our own spin on what the bia is doing that is that is not necessarily jurisdictional bar but that it is an exercise of the big areas discretion to treat so a spontaneous reopening granted in a categorical way but that it's an exercise of discretion yes but exercise of discretion by this court and other courts where it is arbitrary capricious and otherwise or won't be as or a violation of  mark talked about is that the board just can't shield itself by saying on the one hand we're going to create this regulation and we're the only ones that have discretion really only ones that can interpret it but then later on decided it's going to carve out these exceptions t i mean i don't like it all i want her ever for i have a chance that you will trust me i will give you all the time you want judge or i so my question to you is what are you referring to when you say the i j a doesn't have the opportunity to wool regarding push departure bar that you couldn't challenge or there was no discretion to do it because they recognized and that decision that there was a due process issue that was being violated for people who were being deported with orders and absentia that were potentially colorable sticking over one man or the sue a sponsor a decision does not affect their jurisdiction over another the decision on the aliens request and isn't that in essence saying that we couldn't say that the board abused his discretion and not hearing this request but that certainly the board had sure stiction to look at the legal basis of the request is that yes your honor i would agree with  seven years previously i do believe so under the circumstances in this case and i think it also can rules into my argument regarding pereira and that this is before you go  that that if they had said we exercise their discretion we will not hear this case that was one thing if they say as a matter of law we have no jurisdiction to hear this then i think that is not compliant with matters which right in part yes and partner your honor because i believe that in receipt using to take the case and actually hear it on its merits and citing simply post a part or bar they all over look the underlying culpable claim that is there a constitutional issue in this case but for the aloneness decision previously entered by the board this person had never been removed and if this person was a united states right now he would not be removeable so i think in this case it presents a very difficult  appealed at that point he conceded remove ability and didn't put up any opposition to the government's argument and so he was removed on consent is not right not not and holier are so initially he way i think given that he considered remove ability i think him in this case your honor the board when actually issued its decision only noted that secondarily in its first argument for why it was ordering the now petitioner removed they gave the whole argument that it's a that they considered it to be a conviction so they actually went to the point of making a legal finding in their decision that even if he had put in that motion they would have still found   based on what i think in this case unlike if he was if he voluntarily took the very departure voluntary departure does not allow for a motion to reopen under different circumstances but in this case i think it distinguishable and that there was an alternative order that was put in place i do understand where the court is coming from in terms of he requested to go but i think the fact that there is a change in case law nine months later we waited directly to his case allows an opportunity to come back with new information th he would have been removable in the first place thirteen years away and it's the same argument he was making before the i j a and then successfully yes and then dropped on appeal understandably on but i think on the circumstances not trying to get too much down into humanizing aspect of this thing it was a seventeen year old who had been in detention for many many months and was being told he had no options was being told that you know he wasn't going to be able to win his case and he didn't want to stay in attention he wanted this was a young man not even an adult when he was actually deported from this country and i think that impacted his decision and i understand that they could already won his case for the idea but he was he was being led to believe by the government that he was going to have to stay in detention they were going to release him he was being kept in detention because the government had requested it while he was going through his proceed ins and per someone at that young impressionable age it was a very difficult decision for him to have now what you know you've been trying to get jurisdictional question of whether the i j a has jurisdiction what's your response i respectfully disagree with that it's very clear that the court in the polaris stated that twelve twenty nine isn't on any big u s statue and twelve twenty their regulations under one zero zero three point one three point one four point one five point one eight so because hundreds pereira's is relying on our which we argue is something that should be reviewed because it allows the it says important players holding on the stop time rule in the jurisdictional context would have been usually broad implications almost one hundred percent of the n t s b should but during the three years proceed perera did not include the time and date of the proceedings narrow framing counsels in favor of distinguishing between the two contexts there's not a hip about hour at all that it's a statement from the sixth circuit saying we just don't think that the supreme court meant to reach nearly one hundred percent of all the removal proceedings in the last three years what's wrong with that reasoning so no words the government can refuse to even follow its own regulations nearly one hundred percent of the time and the way the regulations the problem is you don't like the regulations you're saying we should very clear this is an unambiguous statute you cannot create regulations that don't follow what the statutes sat and i was really clear in one thirteen one zero three point one thirty describes what a charging document then it states and one zero zero three point one four that jurisdiction is that said with a charging document and in fact even in the dissents and it says that the charging document is said the charging document is a notice to appear but twelve twenty nine section twelve twenty nine states clearly what must be in a notice to appear so the fact that the attorney general of the board how the updates created regulations that basically states something contrary to what section two hundred twenty nine says regarding what should be contained in china notice to appear you can then go on to say that you have this document that was a kick in the descends in her as it can two or three will shabby to then say oh let's add a fourth wheel to it and it's now it's a car but it doesn't work that way and so that's what we're trying to state is that it's but not necessarily asking the court to make the ultimate decision on it we're asking the court remey and told the board the opportunity to review this if the court chooses not to take jurisdiction over at this time but our whole point is that we believe this is a jurisdictional issue and we believe that this whole order that  reopen none of that can exist a motion that is over over time is late we still have the court still has the board still has jurisdiction to hear the boards the board does solution granted not in this situation but recognized that that the courts have jurisdiction to consider the legal matter they don't have jurisdiction to consider the exercise of discretion my understanding of that case is that the court does have jurisdiction to consider whether or not the board issued its decision decision in the correct legal context so had the board made a legal determination and right well in this case the board did make a legal determination as legal determination was that it lacks or section so this court has has jurisdiction now to review whether or not the board properly well as i explained in and sang this isn't a situation in which in which congress gave the agency powers and then the agency restricted its own powers given to it regulations in order to deal with how in order to deal with the suits fontenay are reopening and because the attorney general promulgated to his regulations subsumed within that power is also his power to immigration matters but quote your stiction unquote is not an immigration matter i agree and i'm not disputing that this court has jurisdiction to review the legal matter of whether or not the port properly declined to properly relied on the on the coast departure bar in denying the motion they would so much and in determining what the board calls showing goes into this question nobody has really determined what your sticky needs and they decide they're not going to do it and the second circuit then i want to say you know maybe we ought to think about this but we're not going to do it well but maybe we ought to think about it and it seems as though the second circuit actually did think about it so what the second circuit found was that if we were as if we were operating on a blank slate here and there were and and there was no deference owed to the board then perhaps we would have decided this case differently or additional support that this court need not consider or would consider their reliance on zang to be dicta or just additional support to a finding there are no means however i do think that there is some tension where the where this court decide general limiting the jurisdiction that the attorney general gave itself up at the agency gave itself how does and you can see here it's so jurisdiction beyond the powers that within certain time limits and then there are certain exceptions and that's the statutory motion to reopen whereas in granted to the attorney general the ability to decide its own regulations are soo spontaneous and so so there's authority for suicide page are a section comes from the regulations promulgated by the attorney general certainly to that stage well while the yes i guess will likely have to be right because we're still living in a democracy to and then the agency limited the authority itself that congress provided versus when there's there's a regulation and then they they've defined the contours of the only regulation that they wrote so that gets in to this pretty thoroughly and then at the end of talking about is it an agency that actually has the power to review these things saying i don't have the power we are we are precluded as a matter of our  actual legal authority to even consider the motion and then we've got a legal issue and and we've got significant tension with that the question of who gets to decide jurisdiction government yeah but there's tension in your case law because of change and so we really should be talking about our deference oh i'm sorry i didn't mean so good like you're pit met right on the table well i thought you were asking asking  whether or not in light of the kaiser medication whether or not our deference could could possibly come into this as the law stands this is settled in this court decides settles this issue and there's no  stroke and they came from the i n a and that this is a non statutory motion the c was upon taking care kind of motion is not in the statute so that's how it squared but but you answer the question about i postpartum are in deciding this court said it was proper for the quarter to rely on that that that regulation break in the question is being put to you i think in a nutshell is does it matter that the court and that the jurisdiction is that a matter of legal consequence that we need to wrestle with if they say hey we're not doing this because we don't have jurisdiction is that their shorthand way of saying we have a categor choose to apply and we're applying it or is it a statement by the way that we just can't do this even if we wanted to we could do it in other words is jurisdiction being used in a loose way here that we shouldn't worry about or is it being used here in a way that shows it to be fundamentally misunderstands on its own power so i assume i and so this is where it might have been instructive for that to decide court actually relied on  let's assume that we are no longer i'm instructed to apply our deference by that point isn't there a compelling argument that the b as jurisdictional is it's improper where we were viewing that without deference for all of the reasons that the that that the second circuit expressed its practices right so that's where i was it is it ok for me to go into a little bit kaiser versus bookit it so i can answer your question properly so so i obviously i'm going to we can only speculate as far as what the crew of the supreme court is going to decide in keizer versus wealthy it's it's very unlikely that they will find that there's no difference whatsoever to in each and she is interpretation of its own regulations the government's position so why is it so unlikely why wouldn't they why couldn't they say well we'll have something here that looks  like old school deference pre or appreciable i kind of deference deference of the sort that says to the extent you're persuasive we pay attention to you otherwise we don't what so far fetched about that i mean there's been a long history and there's been a lot of reliance on agencies looking to ensure there are people people who rely on the agency's regulations and the agency's interpretations of their own right regulation good point why would they bother to take the case up if all they were going to say was you know everybody's been relying on this for a long time so we're not changing anything i mean so i can tell you what the government's position in that case says i will say that if  if our deference goes away and there's absolutely no difference whatsoever to regulations of course our case this court cases are going to be affected by that  regulation that has been the so called post parts of our regulation and as the same court analyzes in its own case clearly there's an ambiguity as three courts before the porn even interpret it interpreted it exactly the same way country so so there's there's a genuine question and there's a genuine ambiguity and then we'll ask them is the agency's interpretation reasonable so here you know the prior precedent supports the idea that it's know well i don't have a position as far as how i think it's going to end up but i'm just saying if so it so either it's here yeah so either either i think things will remain the same because that is the law of land currently and starting decisis is  is usually up house but if it's not if there is a narrowing or turn tailoring it seems most likely that it would go in a chevron direction and in that case it wouldn't affect the second circuit's analysis as adopted by this court ok well so i don't think that i don't think that the that the the prior order is properly before this court so i don't think that that anything that happened during that first removal removal hearing  relevant to the petition for review i think the only thing that we can look at is is what the board did with the motion to reopen so once again it would make my job easier to say yes it doesn't matter because he waived it but he did file a motion to reopen and the board needed to respond to that motion to given full discretion by the staff has it been chooses how it will use that discretion and it says we are deciding for ourselves that as a categorical matter we will never allow somebody and we're just going to say we don't even we're not even a look at it we're going to we'll call it jurisdiction we just won't do it ever is that unlawful that of a lawful exercise of the power th by congress i would argue that's how i would argue this case is slightly different and the fact that while maybe up until two thousand and nine the board had kind of done a carte blanche but in two thousand and nine they are governing suction so now they're changing what they believe in an arbitrary and capricious way that's not being consistently held across the board that a potential due process issue was raised and this case is specific to an end of censure motion to reopen based on lack of notice that i make one exception when they have a concern about due that this is completely something that's not open to review we're not going to make exceptions then later make an exception but they're not consider where in this case an exception raises an extremely valid your process issue this is a this is a matter of their their exercise of using the push departure bar as a juror stiction issue as to why they can't even review the merits of the motion to reopen that we filed in this court in two thousand and six and cruz versus ag the court remanded back to the board to explain logically its unwillingness to reopen the case because cruz was no longer removable and that his so conviction was vacated i understand it's a slightly different version but it's still an ado process issue that the board refuses to even consider and that's kate's thank you