will be able to appeal to the b i and then raise constitutional and legal challenges in the courts of appeals and quote and that quote no alien not even criminal aliens will be deprived of judicial review of such claims unquote consequently the circuit courts including this one are now in the position of having to fashion what i consider to be rules of court and what about and you mentioned the second and third circuits and i did such  created a thirty day window of opportunity right i don't consider that grace period a reasonable one year honor for a couple different reasons i mean first the second or third circus they did a status a thirty day grace period but they did so the continuation of the indefinite time now whenever filed so what now if thirty isn't how do we get to my disease and i don't i don't think thirty days is an unreasonable period of time my beef with what the second and third circuit did is that they announced that rule which i would get regard as a rule of court and then applied retroactively and what should have happened in these cases is that the courts of appeals saw this coming but you know it took a long time for a case like this one to percolate its way up and so the courts never real i d act but in all fairness you start to kill it the role and get people thirty days from today in order to file a petition for review the alternative solutions to that would be because this case in this particular case the individual did file a timely petition for to deal with it in this particular case is to treat the second petition that was filed as effective as of the date the original petition was filed essentially not pro tunc to the date of the original filing and that would preserve this court's jurisdiction over th case but as a general rule again i have no problem with the thirty day period my problem is that it seems to me that if the courts of appeals are going to fashion rules of court of this sort they need to give the affected aliens an opportunity to comply with them and they can't the aliens can't comply with those rules if you're going to announce them two years after the period that you're going to adopt has already run and that's my problem with the second and third circuit role it seems to me that that rule violates basic fundamental principles of in the legislative history and everybody agrees that that thirty day period didn't apply i mean if we can go back in time it's really easy to look back in retrospect and say oh yeah you should fall within three days but if you go back in time and you were looking at the t nobody knew how to deal with this at the time and if you look at what these people did in the second and third circuit they were just thrown out against the wall hoping that something would stick i mean none of these people file a timely petition for review of not a single one of the petitioners in cole commission or in that petition within thirty days you would have been looking at sanctions because the real i d act if it was clear about anything it was clear that you had no right to file a disposition after the enactment of the real idea so there was mass confusion in that thirty day period about how to deal with this because on the one hand the legislative history said well these people are going to have a right to obtain judicial review but it didn't explain in any way how you're supposed to go about doing that and so ultimately and from my perspective the courts had a responsibility at that point because ultimately what we're dealing with it's not a jurisdictional provision you know as the that would as described in bowles what we're really dealing here with our rules of court to deal with these particular cases the court needed to address this issue me making certain rules of court typically going to do that in a published order a published opinion but again it's not fair to do to issue to now a thirty day period and say well everybody back then should have known that two years later we were going to promulgated a rule that said you had to do this within thirty days that's just not fair and it certainly defies the intent of congress because congress said you know with the enactment of the real i d act no alien and not even criminal aliens will be deprived of judicial review see if we do with the second and third circuits have done that's exactly the result because you're enacting a rule two years later and saying well you guys should have foreseen this but really if you look at the text of the real i d act and i could tell you at the time there was  confusion nobody knew what to do in this particular situation it's not fair ultimately what happens then is that all these people lose out on what congress intended which was that they have a right of judicial review if you want  commit enough crimes the reason he's not eligible for a strap on the government's view is that he only committed one crime involving while turpitude he was charged with three counts he was just two of them were dismissed the third he was convicted of for that reason he wasn't deportable if not violated by the real idea therefore petitioner that doesn't benefit him at all moreover if the court then gets to the second and third circuits decisions they've decided thirty day period is sufficient and we would agree with that but in terms of what we need to look at first assuming the court even gets to the suspension clause issue we would say that you have to look at the looking at the expressed language in the statute there's no right to the petitioner here that's where circuit way out of all of that you embrace that it was ok for the third circuit to read into the legislation a thirty day window correct no year i mean we would first say if you look at the extent you would i thought you said you would agree with the second and third circuit only if only if you think looking at the statute itself that it's not expressed there we believe if you look at the statute it's expressed because the only exception that the congress provided for aliens with respect to needing the thirty day requirement was for those who had a pending heaviest petition so but that's not how the third circuit applied it you know the third circuit in the second circuit their view was that you couldn't tell saying that the third circuit wound up doing that it said thirty days unfortunately for the petitioner there he hadn't filed within thirty days so he got the construction that didn't ultimately help him counsel argues here that that's not fair because nobody knew at the time that a thirty day window would be created by the courts and therefore and in fact it would have been very difficult to litigate that on a timely basis and get that ruling i suppose they could have filed a protective piece of paper in the district district court and preserve the argument within thirty days but basically saying yes you can give them the thirty days you'll reluctantly give them thirty days knowing full well that it will help and will help anybody and your honor that's correct and the reason being as the second and third circuit pointed out to do anything else would give criminal aliens more time to file a petition for review then non criminal and that is specifically what congress attempted to stop in the real idea that furthermore you know his were on  notice there's no question that they were on notice once the real id act was enacted they have thirty days to follow petition for review they were on notice what's what's the point of filing a petition for review i want one of these petition when you know that it's the wrong court in the wrong place and that's just going to have to be sent up to the court of appeal why not file a petition for review within that period what i was saying you petition but it still doesn't answer the question of whether that's fair to people who can find out in the statute that that's what they're supposed to do you know the thing that tells you petition for review yes with respect to hades jurisdiction they had a longer period of time but again they should have done that fairly quickly because if they didn't and they were subject to removal and got removed they could no longer follow the heaviest petition at all once the real idea came along r and in terms of looking at retroactivity or land graft what you look at is the expressed language of the statute or by necessary implication here the only exception provided was for those aliens who would fall day a v s petition  ready and that is not what the situation was here so if you were in the position of this position or what the statute clearly tell you to do you no longer had a right out you were gone you had no judicial review that's correct your honor but you previously had an adequate opportunity and this court in you know asked to and perry has already said that the it was inadequate remedy that was provided by the real i act i know my time is up if i may just briefly touch on the other issues just to indicate with respect to equal protection claim our position is that was raised only in the reply brief therefore that's an advantage in claim cannot be reviewed if the court is going to consider it then we would request a briefing on it but we do believe that case fails but in any event we don't believe the court needs to reach the suspension cause issues at all because the petitioner has not raised cognizable legal or constitutional claims here and we and you court does not have to i think it's interesting that even the united states government with all of its resources didn't anticipate that an alien could preserve its rights to just a review of the real id act by filing a petition within thirty days their view has all along  d no that wouldn't protect your rights so i find it sort of difficult to see how the court should anticipate that an alien often represented by counsel would have had greater presence of mind in interpreting the sta easy for you to say as a circuit court judge you you know as many i mean even if i were just lawyer i might be able to play very few lawyers did it let's just say that and none of the published cases have we found anybody who's done it so that's th i think it's just the normal course of business that these things take a long time to percolate up through the courts and it's taken this long for this case to get here so the court can issue an order dealing with this and that's the reality and we have to deal with that reality because up until the time the court publishes the sort of people haven't known really what their rights were that they had three years from now many of them probably adopted the government's position that they had no remedy at all because that's the position of the united states government and a lot of people probably believe that that position was correct and it's up for this up to this court to say no that's not the correct position you do have rights under the real i d act it's not an unlimited period of time but you get thirty days to file but that they have to have advance notice that the government's position the position that they've been taking and every one of these cases is incorrect it's incorrect reading of the statute in only this court can tell people that the government's reading the statute is wrong i do want to make one other quick point because the government you know i know i'm out of time the government relies poori and the pearl in case i found very confusing because i thought that actually did help the government but then i got the file and i looked at the decision in that case it's not clear if the decision from the b i am that case which is that reflected in the court's decision the decision in that case was actually rendered after the real i d act the decision from the b i came out july sixth two thousand and five that's not a case involving the suspension clause because that person had thirty days from that date to make his claim file a petition for  petition for review even though he wasn't a criminal alien and even though he had the right to do so and also the the remedy that the court devised in that case was telling him that he could file a motion to reopen it to be i i we don't have that luxury if you look at the regulations  deported from the united states can't make a motion to reopen once he's gone and this guy's been deported so under the regulations he doesn't have the opportunity as this i used to did of making a motion to reopen our remedy rests with this court or we've got no remedy at all