fly judge ripple judge get on then good morning well good afternoon made please the court i'm counsel for the plaintiff appellant my client is lucky to be alive he comes from the pal where the ma wists rule and they beat him they broke his leg to send him a message that he face you didn't see these is human rights and democracy activities they would kill him he was lucky also that the broad island university facilitated his flight to the united states paid for his ticket wrote him a letter so he could get a visa from the united states embassy and he's lucky also that he can appeal to this court he's unlucky that his family is not here with him he's unlucky that the united states citizenship and immigration services did not grant his asylum application but he hopes that you will hear him and that you will reverse the decision of the court below we believe that shiny vs nelson needs a revisiting and we believe that because we believe that that decision focuses on cases in which asylum applicants have been placed in removal proceedings or deportation proceedings we believe that because that decision focuses on those cases in which the district director or the asylum office has made a decision to deny and the applicant is not in valid immigrant status and those situations in which the applicant is not bronte granted or denied asylum the regulations order the asylum officer to do one o two things either grant the asylum application or refer the asylum application to the immigration judge in the case of that applicant who has not maintained legal status in the case of that applicant who is maintaining legal immigration status officer had the second option grant the application or deny the application he couldn't refer it to the immigration jet and that is piling regulation or statute that is by regulation ice and because he could not refer it to the immigration judge he had to deny it and once he denied mr de coll had nothing to do after that he didn't get review because he couldn't get referred to the immigration say he could under the regulation he could not have granted it could he could protected start issue here that is correct judge not and under the circumstances he can do one of two things he can granted he can deny because he's in temporary protected status if h not in legal immigration status and he's not under temporary protected status he can then referred to the immigration judge and the difficulty for your client is that he therefore is denied if you want he can stay until his temporary protected status expires as i understand that will probably happen in two thousand and nineteen given the president's orders or that is going to end in june of two thousand  then he can contest the directors or determination yeah i mean if he is referred if he is referred but that's not necessarily going to happen because it is a choice that the immigration and customs enforcement will make there's been situations where they haven't made it this numerous cases in which people aren't qualified for cancellation of removal for example where  to commence removal proceedings a let's say june two thousand and nineteen comes and goes he's no longer in t p s could your client initiate the removal proceedings and get before immigration by himself yes no he couldn't it's ice who can asses removal proceedings only they have the choice to do that he can't do it independently are you arguing that the regulation that prevents the referral to removal proceedings he is invalid no i'm not arguing that there's so we're arguing basically that an abuse of discretion on the part of the director i'm not arguing that what is your it what i'm arguing is that the shiny is a case that controls in cases in which there is that is instituted that proceedings have been instituted and there's been referral to the immigration judge in those cases there's a bar to taking review to describe course what we're arguing is that without that a person like my client should be permitted to go to district court because he has no alternative for review and that's why we went to district against my client and if you get it if you are assuming or you when do you get into the district court your argument is want that the director abused his discretion by denying a side met the logic was flawed and the merits can be reached by the district court was in other words that the district court can review the asylum application itself the district court is capable of reviewing the application again soon arguing to their district court had the authority would have authority to do their with that be binding right then on the on the service in other words if they don't protect the status relator lifted would your client be bound by the judgment of the district court and from pursuing we're from defending removal at the apple i i imagine that would be true but if the district court grants asylum if the district court says he wins he gets a cylon if the district court says no he ends up here he appeals to this court which is where he would end up if the board of immigration appeals said no he would appeal to this court it's not a second kick at the cat or a second bite at the apple as your honor said he would end up here on appeal it's the same venue that he can ask a question about the prejudice the prejudice that you say your client is being put into this limbo in a sense is that he can't bring his family over if he were granted asylum he have a right to bring his family or he's he's alleged from what i've read in the record that his family has been threatened right that is correct ok so why can't he bring his if if his wife came over today she would be in t p s which you know she she would not be because she was not here by a certain date by which you needed to be here to qualify i see so but could she come over and apply for asylum she could ok so for the same reasons that he's applied that that they've been persecuted because of their political activities by these maoists correct that is correct yes so why why can't he eliminate that prejudice by bringing them over and having them here and having them go through the asylum process just as he did well because of logistics he would need to actually get a way of bringing bringing her into the country you have to enter the country legally and i imagine your honor he's not suggesting that he bring her into the country illegally now but as we as we see in leasing another context people are coming into the country and immediately putting themselves into the asylum process i imagine that's possible if theoretically it is possible to answer your question yes he could do that and they could have come over with him to write well they only got one ticket and twenty thirteen was not decided to after he had already received t p s and that's just due to administrative back we understand the position is somewhat unique given that his t p s will expire a little over a year from now but that does not mean that immigration law should rise or fall given the unique circumstances that are to be you're saying that he has to exhaust his administrative remedies regardless of the certain when mr to call will be out of status and there are things that he can do to follow up on us he has his initial denial of his a sound that location for example there are already been minute change country to the june twenty fourth deadline there shouldn't be any problem with him referring to him him to ice for removal proceedings where he will get another bite at the apple to make the exact same asylum determination however you have the additional benefit of developing a clete the minister of record where he can call witnesses where there can be cross examination instead of the it much more informal process that takes place with us yes that is the problem that this court for and of could and could show me exactly why this this court said really wants is to have we also he's asking for the district court to complete three ways that the district courts are not in a good position to do that which is why congress repeatedly passed legislation say no we don't want to go to the district court we want to go to to have his a sound decision heard by district court and then that basically moved out the administrative process that congress put into place and the claim channeling that congress wanted for those claims to go through the petition for the process that's why this been a change in country conditions that is conditions within the country that has not happened the conditions are still the same you can have an option of free filing if there has been a change in personal circumstances he circumstances have not changed but they're saying that the the decision to terminate the t p s with regard to  reflects a change in the country that cause that terminations so is doesn't that give your client an extra hook that is not considered a change and you can imagine what the chaos would be with all the countries that are being terminated from t p s at the moment by the trump administration that is not and experts have determined that that is not a change in country conditions or changing personal circumstances the other issue that mr press has raised is the issue of mistook a shiny being in the same situation as my client mistook a shiny was given thirty days to leave the country and within those thirty days he decided to file his action my client was not given thirty days to leave the country this is fast difference between those two situations