thousand and nine reinstatement order at issue in this case until two thousand and sixteen seven years after the order was supposedly issued respondent states specifically that they do not provide copies to people who refused to sign the removal orders there must be a forum to raise a challenge to a reinstatement order when the government has refused to provide a copy didn't you raise that to the ninth circuit in the p f are yes of course you did your honor there was a form to raise the argument facts of salinas and of all in the castro cortez decision are not controlling here therefore you're out of luck that's one thing that's a dressing the merits of the jurisdictional element so if i understand it you've raised the arguments before the ninth circuit th circuit just does not say now go and raise your claims and a b s but we should infer that that's how to interpret them and as right you want to because otherwise there's no form i mean you have to you didn't you were in a form right review with slate so what's the theory that the ninth circuit didn't deal with this issue in the earlier decision what would have been the basis that they would have dismissed it if it wasn't this requires an evidentiary determination and i don't think that post will id it's very possible that and after the scene case that any fact finding has to be done before the district court if you take an example and there's some a question of it my question was what is the what's the other what's the alternative way other than what judge acutest said to interpret the ninth circuit's decision dismissing the petition for a view that hey b s is available so we're supposed to read into that that maybe they thought that he b s was available because of saying or whatever well your honor there's no reasoning here at all and i mean i ask you believe that this court acknowledges that a copy of a reinstatement order is not required and that seems to me rather rageous given that due process the statute and the regulation all require a copy of an order well the  certainly could have said it's untimely but for some of the arguments that are raised we're going to reach it anyway but didn't do that they just untimely and dismissed it but it is true and i don't know the reason for the decision and how they address the merits of these two are unfortunately they of memphis we don't we don't do that and it's unfortunate but nonetheless were you the arguments were before the court and they did they did not find  place to raise it we eat we will deem it to be raised here in our right your honor and then after castro critize comes down real ideas pass right and so really i do says that any issues that happened before the entry of a removal order need to be raised in a puzzled about why you thought the failure just kind of obviously they showed it to him and he refused to sign it so they didn't give him a copy of the government now says one of the three documents serve the same effect but that was obviously concurrent with the this is an issue of the service of the actual order so and that's not a policy in practice arising from removal proceedings but it's a service of the order so that all occurs after the order is final so when an removal order is issued by regulation in statute there has to be an actual copy that the given the government submitted as a matter of practice but it doesn't do that but again you can't are you referring to the declaration saying that that individual officer didn't give a are you say or do they have a policy statement that they that's their practice or policy i'm not saying it's policy to practice he says specifically that it was his practice standard procedure when they didn't sign the release the order and let me just be clear the signature is for notice of the charges against him it's not for receipt of the order the notice that's provided here of the allegations against you you sign or you don't sign and then the order is issued that's what happens under the regulation at two forty one point eight so you're arguing that's why i was asking why you're arguing that in this case his challenge is challenge after the order of three right runner isn't filed we don't have a file order here so he signed then they issue the order and then a copy is provided so he didn't sign so what it was hi how does that affect it it doesn't affect at all they still issued the order what you mean by filing you mean issue is the notice that was given after the removal order was entered so just to analogize if this was a board decision and there was no notice we would do a motion to reissue of the board decision we can't do that in a case of a reinstatement order because the government policy is to not provide a copy of the order itself let me make sure i understand the sequence of events so he's brought in he's told that this order is being reinstated he refuses to sign off on that the orders and the reinstatement that happens and then there's supposed to give him a copy of it he didn't get the copy of it and that's the conduct that's really challenged in this case and so you're saying that that's after the entry of the order of reinstatement be even only five seconds after it was still after is has to be available as j f m sad there has to be a forum and if a direct petition for review is not the form then because the events arose after the entry of a final order then hey vs it's proper jurisdiction and i'd like to government good morning your honors matthew seaman on behalf of the united states may it please the court the immigration and immigration and nationality act is clear claims for review of an order of removal and all questions of law relating or arising from that action taken to remove an alien from the looking at some legislative history is that the claim that fell into the exception and saying was independent of the challenge to the removal order right the thing that people were challenging in saying was was not an action of the government or the process by which the order was served it was the fact that they had an attorney a third party attorney who they believe did not act with with all due diligence and therefore because of that attorney's actions they had missed their opportunity to seek their day in court on review of that of that order that is not the issue  is inextricably linked to the order of removal it's repeated by section twelve from fifty to eighty five and that's exactly what what we have here so yes so so you're saying so you're saying that this whole issue about the service is inextricably linked or whatever the term was you just  i mean i think i think it's not only is it is inextricably linked but it actually is it's the procedure itself that's being challenged right that is part of the procedure in the process so i don't even think we necessarily get to the inextricably linked it is in fact the procedure that's being affidavit didn't remember this specific individual mr menendez but he did state that his standard practice if someone refuses to sign that for my it seven one is that he verbal e explains what is on that form and the reinstatement process and then serves two other forms the rare relatively rare instance where someone's refusing to sign the eye itself in one but but that is the procedure that at least this particular officer follows and that is what the other side alleges does not comply with it so far to forty one point eight so if  if your statement is that what the officer did comply with the regulatory requirements and his withholding this one form was irrelevant then it is your argument that what happened was ok absolutely i there's no way you know the this issue of whether the reinstated removal order was you know properly served and therefore properly reinstated such that the thirty day appeal deadline began to tick that was fully briefed exhaustively in that p f far that was the basis for the government's motion to dismiss the pm far and that motion to dismiss was granted by the panel of this court and you know i acknowledge it would have been so i don't think there's any way to read the order and there's no basis to conclude that that's the argument that mr menendez is raising now and raised previously was not addressed it will just hold in seems to be arguing that since they didn't specifically address it for all we know the court could have been saying in the dismissal that that's not something we're going to deal with here go do i hate b s because what happened in the intervening period was saying got the side what about that well i think in all that or at least i think i understood it that way at least yet so first of all i think obviously the panel could have said that if that's what they intended to say but i also know that th  and that is exactly the argument that individuals tried to make in jail and which was rejected that was obviously claim that was much more similar to the claim that was brought in saying with respect to  counsel and having the assistance of counsel so if this court found the claim involving counsel that was brought in j s them was to inextricably related to the procedure and substance of removal order to be challenged the other cases that mr menendez cites in his favor you know castro cortez they rely on quite a bit but as we've pointed out what happened in castro cortez is exactly what should happen and what did happen cases prior to that you know that those are just no longer applicable  claim but that's simply not true you know as the court said in j f m just because an individual would prefer to bring something in hey b s or thinks that a class action type relief any more effective that does not get you around to all fifty two and claim channeling provisions of twelve fifty two so the fact that an individual's unsuccessful in their p a far does not mean you know they get a second bite of the apple so to speak just because they did not like and if the court has no further questions on that i would just like to address briefly the the possibility that i know this court issued an order about a week ago a little unclear what could happen with respect to that  subject of this reason and that's gone up in the aca couple of times right it has had a very lengthy procedural history yes so it's a little unclear what could happen there i would just say a couple of things the first being that this ports solace in two thousand and seven said that events that occur after the removal order is reinstated do not change the validity of the reinstatement so as long as the reinstatement was valid at the time that it was reinstated subsequent events do not do not alter that and the other thing i would just note that you know the basis for the motion to reopen i understand is that the drug conviction which was part of what the removal order the original ninety four move order was based upon has since been vacated so that so that is no longer at issue but mr menendez was was not ordered removed purely based on that conviction he was also ordered removed because he was entered without inspection and was was not lawfully present you might have been eligible for at least potentially yes so to the extent that that that other p s r is resolved in such a way as to reopen the proceedings you know perhaps he could have an avenue for relief but as i say our position is that that would not a fact this case at least not directly because of as i said moral is this fair go and the idea that as long as the reinstatement was valid at the time it was reinstated subsequent events do not change that be clear the regulation we're relying on for a copy of the order is at one of three point eight so two forty one eight talks about service but one or three point eight is for all service decisions and says if there is an adverse decision argue that the government didn't meet its burden of proof on the reinstatement all of these are challenges to the merits of the argument nothing to do with the service issue the only issue before the district court was the service issue and the cancellation issue and that and again nothing to do with the merits so they are not extreme i also wanted to point the court to jamia them where it looks at the same decision and says as to the the claim regarding events after the removal order oh the government also has argued that this was a rare circumstance we know that failing to provide a copy of the reinstatement order is not rare it's the same thing that outraged the sixth circuit in martina's serrano they were outraged that they were not providing copies this is a systemic issue and not a rare circumstance and not allowing a forum to challenge this would entirely deprive these and of it review finally after the last issue as if the other cases granted and your view i there is no case law on this i don't think morality actually addresses this at all in practice what happens is we ask them to cancel the order and they do it does happen cancellation of the reinstatement ordered actually happens routinely so that's why i was very