and i'm not sure of the exact number but i do know that the record reflects that at least within the ninth circuit counsel for plaintiffs talked in the district court about how she had a number of clients a significant number of clients apparently that would be affected by this take longer right generally i think that's right yes and here of course we're dealing with a subset of illegal entrants in other words we're not talking about individuals who are outside the country and are petitioning for permission to truly enter what we're talking about is that group of illegal aliens who have already been ordered removed from this country right in fact have left this country and then proceeded to break the law again by illegally  doubt but you know i but i'm just wondering i mean it's obviously an important case to both sides and i mean i think that we can all see that but you know what you know sometimes we know we're talking about six thousand people sometimes i say i sense it's more than the people that are actually the parties here but it seems that you know when if the government's taking a point to you know come up here on this that now that you have some sort of idea right i guess i don't have a hard and fast i don't believe we introduced anything along therefore president solace is not good law but you make that argument which i'm not finding that terribly persuasive but the second one is brand there it's that you're saying that brand x that it has a brand x that we should follow in the matter of tourist garcia and that to to do that you have to go back to presidents all eyes and see what they get about chevron deference right you're exactly right  well and what the board is saying is that congress has said here's the provision with a permanent bar for illegal the entrance and here are the circumstances under which an alien can obtain a waiver to cure that in a disability the it only needs to wait ten years and the board said that's what congress has specified is the way you get a waiver from that bar and we as an agency are simply not in a position to promulgated regulation to first time and i think that's certainly a fair reading of the opinion judge can be in that that is certainly one of the points that they made in that certainly the board didn't say are regulation is invalid what they are saying words it was a comment that was not made in the context of the issue presented in this case it was a generalized statement at the beginning of the opinion and then as the court knows the panel  i think that if your honor were to ascribe the overarching significance to that initial statement which again wasn't specifically made in the context of this issue at the beginning of the opinion it would mean that the court spent three or four pages of actual discussion  wrong on the first point but i think that the court also aired in the first part of its decision where it talked about how when and elian files and to twelve that somehow that acts to prevent the absence of a more formal agency interpretation this is what we're going to do and the board of immigration appeals got the hints it accepted the invitation said here's our more formal agency interpretation here's why we're doing what we're doing i think it clearly several hundred is a is a limited group this is an opportunity that congress extended to this small group only these individuals who already had petitions filed by may two thousand and one congress gave them one last chance there be people out there that under two forty five by whose priority date is not yet right and so in the future they would then be able to submit their adjustment application pursuance of this penalty fee just and program that congress extended and we don't know who we don't know how many going to give these folks one last chance anyone who can get a petition filed on their behalf prior to may of two thousand and one is still going to qualify under this old framework and that's what this group is all about that's what pairs them is all is was looking at this group of individuals who qualify under the old framework in paris gonzales this court worked out to twelve thirty nine c as well as the other grounds of inadmissibility this court looked at the adjustment application under two forty five and this court and the regulation makes explicit that if someone's even if someone's own lawfully re entered then the if that permission is granted if they demonstrate enough equities to show that they get a second chance then that permission will be deemed retroactive to the date of their  were able to use the standard tools of statutory construction to find the plain meaning of the statute and that's explicit in this decision as is the court's stated in the standard of review however the court then being careful went on and said even looking at this government's interpretation where to analyze this well we have to recognize that the formal the formal interpretation of the agency is the regulation itself and the regulation itself makes it splits that that this group of individuals people who have been deported and off we reenter still have an opportunity to apply for adjustment now the court noted it's a risky proposition they have to show that they merit this relief at the discretionary application and if that applications denied brand x and the cases that have looked at that are looking at whether whether our court must defer to an agency's regulation in no case is there something where you have the government saying well we have a formal interpretation in the regulations but we want you guys to look at this other interpretation and that's what they're doing here the government is seeking to avoid their own interpretations of government continues to reject eight c f r two twelve point two  do you do you agree that if we did find that brand of supplies we adopt a matter of tourist garcias and we can do that without going on bond i would say that i know you don't agree with that i realize that but if circuit alone the tenth circuit alone is the only one in a published decision just come out and said this regulations not in court and it was interesting to look at what the tenth circuit said embarrassed because they said well maybe you could use that regulation to apply to first time insurance but that is inconsistent that was the first time that person entered the country he would have never previously been deported already moved therefore it would have been unnecessary for them to apply for this because eight c f r two twelve point two only applies to individual the court didn't address the regulation at all and and what we have here is so i think there are there are contrary decisions in other circuits but it's by no means as overwhelming as what the government states you have one court and in that second issue the court said yes if they qualify under two forty five and if they already have this affirm of application pending into this program that congress accept standard to them along with this discretionary application for permission to re enter then the government carves out space for how to treat some cases different the ninth circuit and cases in other circuits but if they really believe that the tories for cea and fernandez vargas were intervening authority to control the issues presented there be no need for them to try to carve out a different way of dealing with the ninth circuit case because they have their new authority this is just kind of a johnny come lately support this same old idea they had their opportunity to litigate these issues they filed petitions for rehearing they filed a motion to reconsider both were denied they did not seek further judicial review that's their bound to comply with the holding of this court and there is no intervening authority to contradict the plain language  was relying on the plain language of the statute and that's in the standard of review section says that explicitly the government kind of attempts to car itself an exception there i think you have to look at what they said when they talked about our our interpretation but that regulation and anything that they do that undermines or does violence to their own regulation is not accorded any deference regardless of whether there is judicial controlling judicial precedent moreover if i had  the move proceedings then i think the court you would have to go ahead and file a petition for review of that reinstate an order and the court would have to look at now that they're already in these removed for reinstatement proceedings what's the appropriate form to move example mistrial or one of our named plaintiffs had her application tonight back in september of two thousand and five over the next year the government didn't take any steps in her case and this is typical in many situations where applications are tonight and then these individuals are left in as it were limbo they don't have an opportunity to to then renew their work authorization they're not placed automatically into removal reinstatement proceedings where they have immediate access to challenge unusual proceedings now once motivated to get a local office and say well we've got to get this straightened out i mean my work permit so i can continue working i need to get this through also my family knows whether we're going to be living here or we've got to figure out how to lose in our country of origin and they want to go forward and many times we're left in that frustrating situation where we're trying to access i have to explain to my clients well there's no way for us to force the government to then go ahead and put you in removal proceedings because once you're in remove with your proceedings we can have your application reeducating and this happens in context or people are denied as a matter of law or when they're denied as a matter of discretion perhaps they have a criminal incident they need to file a waiver or trying to convince the government that they deserve this discretionary waiver and the local  office denies it and then we explain to our clients well you're going to have a second chop that's rather a second shot to to explain to the judge why you deserve this discretionary waiver but we have to wait until they actually put you into proceedings the bottom line is these cases do not involve anybody who is placed in removal or reinstatement proceedings they only involve people who have pending applications or who have applications that were known lawfully denied but the government has never taken any subsequent steps to move forward on either reinstatement or removal proceedings the other point i would like to make is going back to the government stated that if the board was saying well really what what their after having been deported it's therefore confirmed by congress that eight c f r to twelve point two continues to be a valid regulation moreover the agency itself has modified the regulation twice instinet minute vajra once again demonstrating i decision at least says that it's reasonable so i think that the vast majority or all the other courts that have addressed this issue have weighed in on the government's side i think that should really answer the question whether or not it's a reasonable interpretation waiver provisions and didn't want to allow illegal ilian to circumvent this ten year bar through other means the waiver provisions for nic are expressly set forth in a nicely and as the board correctly noted it has no