comes before this court seeking to vindicate his statutory right to reopen his proceedings let me just see if i understand your position or are you arguing that before the removal before the removal order is reinstated he can't see review but the moment the reinstatement process and he can and the bars are lifted that's a secondary argument of ours we have two arguments but that is one of them we think that's one potential way to read the moralities care to and miller made clear it has cut off that that's how it's interpreted the statute your argument is soonest reinstatement process and you can collaterally attack it that's the temporal argument but i think there's a separate argument which is he could file his motion to reopen during the reinstatement proceeding it's a separate sort of parallel track over here the point is he can't use the fact that he is subject to a reinstated removal order and that process to get at the underlying order charged under that statute and you would have the opportunity to apply for relief so when does the reinstatement process and so the reinstatement process ends as soon as the order is reinstated and here don't there's no question that the order has been reinstated he's now in idea that the reinstatement bar applies only during the reinstatement process holding that the bar is permanent yes cordova so it does seem to hold that it's a permanent bar in doing that it collected relied on friends of argus and saying that what reinstatement is about is a procedure it's a procedure to expeditiously remove an individual from the united states it says nothing about their ability to collaterally attack the order outside specifically says this does not change that non citizens rights and remedies and does not change the fact that it creates no new obstacles to attack the validity of the underlying order cordova so too ignores all that and essential says we don't actually really have any due process concerns here and we're just going to read it as a permanent bar because we think they knowingly reenter the country and they should be essentially punished as a result and never be able to indicate their rights but with respect  though in the context of this case well i think there are potentially two ways to construe it so one is you could you could read it as a temporal limitation and saying during you could read during as a temporal limitation the reinstatement process there's no question that the reinstatement process is over and he filed his motion to reopen after the reinstatement process was over his order has been reinstated you can see it at car three hundred and forty eight he's now in withholding only proceedings that's a step or proceedings and there's no question of this court's case law fifty two avoid due process concerns is that you are no longer able to get at the underlying order in the reinstatement proceeding itself but that leaves uneffected your right to file a motion to reopen and it has to be that way well otherwise know why isn't that during the course of the reinstatement process language at the end of the morale is decision why isn't that just picked i think it's very clearly not dictate your honor because you cannot the court immoralities kero was only able to find that the reinstatement process is constitutional because it does not affect the non citizens rights and remedies otherwise otherwise you can't hold both of these things and have them be constitutional it can't be true that you can reinstate an order that violated due process and that the person can never otherwise attack the validity of that order i think you would have a suspension cause problem at that point there has to be a way for you to attack the underlying order and that's why  clear that it does not affect the rights and remedies and that that language has been quoted in other opinions it's being considered by this court i think the underlying logic of young piano talks about it are yes or denies talks about it like at the end of the day when the reinstatement procedure is over the non citizen is in the exact same position they were before and that language has been repeated multiple times in the circuit you are no worse off after the reinstated removal order than you were before but if we defin reinstatement process as lasting until in this case fisher's visit be removed from the us would not address your constitutional concerns potentially your honor but i think that doesn't make a lot of sense and this case is a good example why st of all as i already said i think it's clear the reinstatement process is over the order is administratively final what's your best argument for why its over sure i think i have multiple arguments so one and forty one point eight which specifically talks about what happens that's the regulation governing this right so what's what it says is the orders reinstated and then you get sent to route with holding only so there's no like that's clear also  very clear that these are separate proceedings and the orders administrative leave finer ortiz all far i was only talking about for purposes of judicial review and that's a constitutional avoidance opinion to specifically make sure you can apply and here it would make sense because the only thing that staying the execution of the reinstated order is withholding only proceedings it would be a little illogical to say well somebody who has a reasonable fear and is pursuing that relief should have to wait to be deported to file their motion to reopen it well because i agree it may be a little illogical but as you know somebody is at an earlier thing the immigration law is nothing but illogical so we got we got four different levels of major laws  put on top of each other they don't correspond with one another and as you know sometimes you've got to leave the united states to start a process like the ten year period and so on so i guess my concern in this case is is this one of those cases where you have to be out of the country to really trigger this certainly i mean at a minimum we agree that it can't be a permanent bar and so if if it if if the court were to say that the reinstatement process is over once they have been deported  that would resolve the permanent bar problem and essentially you know that was my earlier question so yes so we agree with that but but i do think it raises some some potential issues around that could you see it can't be a permanent bar you're talking about the morality decision for that disagree on it says it's not subject to being reopened but the way that that has been construed by this court is it's not subject to being reopened within the reinstatement proceeding it doesn't say you are permanently barred from filing a motion to reopen it doesn't even use the word permanently which it clearly could  process is over well know your honor as i as i've tried to explain but perhaps haven't done while the withholding only proceedings are separate the reinstatement process is over you can't file this motion to reopen in the withholding only proceedings the only thing that  consider in the withholding only proceedings are the this is withholding only claim you have to file the motion to reopen before the judge that issued the order if i understand the reason for the bar during reinstatement proceedings it is that he was supposed to challenge your removal when you were removed there's a procedure there and you can't do it when we state that removal you missed it and your position now if i understand it is that but if something happens if something happens after the reinstatement or you have a ground to challenge after the reinstat good morning your honour's may please the court jonathan ross for the attorney general at each stage of this litigation both then and now mr pradelle benefited from every reasonable process to ensure the protection of his rights and interests on the point of the permanent bar under the reopening bar i think it's very important to understand miller and morale as is when squared zero in the proper cont that is specifically in the in the end of stench of context and it's those court in those decisions the court just doesn't say in instances where there are due process concerns period those due process concerns are specifically limited or are framed with two issues st that due process concern exists in the context of someone not even knowing that they were ordered removed only to subsequently come to reenter the country and to have that rate that removal have that removal order come to light nd and moreover there is a statutory exception in the in absentia motion to reopen contacts that doesn't exist in the case twenty nine a c seven were in morale as the court held that the reinstatement of a prior removal order does not violate due process regardless of the process afforded in the underlying removal proceeding the court stated the only effect of the reinstatement is to cause the aliens removal and that it does not change an alien's right or create new obstacles to attacking the validity of the removal order that's correct but again exceptional circumstances i believe eleven of them relates exceptional circumstances one relates to the end absentia ground well where does morale of say that though i would have to pull my pull my  my copy of morality and i'm happy to submit supplemental authority on that but again turning back to the context in which the miller case and the morality case were judge it was in not only was it in in absentia case but there was objective evidence in the record that the petitioner had never received notice of the removal order in this case this case is clearly distinguishable where mr pedia had every notice possible he was personally served with his nose to appear he appeared  had every the procedural protections that were afforded him go on and on and on not only did the immigration judge make an explicit finding that his that his that explicit finding regarding his his rights to have an attorney his right to file a cancellation of removal application all of this was explained to him and the immigration judge me an explicit finding on the record that it was knowing and voluntarily there is a terminal limit to the reinstatement process and seems to suggest that if in this case the petition were outside the country he could indeed then seek to reopen is that your position your order is one hundred percent correct there is a mechanism in place to challenge one's remove order and that is there is a time constraint and he has ninety days to do it and it was the intention of congress was to ensure that there was an agreement on this so their concern at the vigorously express their concern about due process yes the guy can't be just cut off without any due process the government's response whether or not you're the only applies in absentia context is that if he leaves the country then there's a specific right for him within a ninety day period according to you to challenge this so there is due process in addition he's received all this through process over the years that then then and now he continues to receive due process protections from the united states of america even in his withholding only can proceedings he has now met the franco certification the franco member for membership in the franco class to be afforded additional protections this is the story about an individual who has been protected by pursue every procedural every reasonable procedural safeguard that this country offers and mr pretty have forfeited his right to be able to challenge underlying order by taking the law into his own hands he said that he what he's asking this court to do is to not only nor the statue in clear congressional intent but he's asking this court to create in the st instance jurisdiction for the agency to save him from his own misconduct he's inviting the court to legislate and and i vehemently the government vehemently asks the court to reject this invitation in this case m lawful had a lawful revenue avenue that he forfeited and that is what's problematic about these proceedings it was the mental condition of the petitioner not his counsel have anything to do with the nature of this particular action at this point at this stage of the proceedings no your honor the the his mental his mental illness although his mental illness although certainly part of his proceedings that are still pending before the immigration judge they don't play a factor in this case especially where we have an immigration judge as affirmed by three member panel of the board that went through such great lengths to make sure that his that his rights were protected as is an immigration judge is duty for any pro se litigant he went through all of his rights on the record and in the in in the decision in the written decision from the immigration judge all of that process is more memorialized in most of our cases we see i see the same process don and oral decision with a fraction of the specificity here we can course of the reinstatement processing quote language and there are morale if you're familiar that language right yes you're on the board quote of that as well and it seems to be an important assumption underlying the court's holding that reinstatement doesn't violate due process because it doesn't change an alien's rights to attack the removal order my understanding now based on your argument today is that you're distinguishing the language of morality from the facts in this case non citizen st learns of a removal order when they're trying to come back into the country that was not the case here and really what i think that my colleague is trying to ask the court to make a new exception to make an exception in the mental health context and unfortunately the statute just doesn't allow for an exception like that to be made when does the reinstatement process in the reinstatement process ends the language of it is is made a little bit murky but the government's position is that the reinstatement process and when that when those proceedings went after that reinstatement after the actual order is reinstated that at that point actually creates a new opportunity for the non citizen to file but it is a it is a procedural safeguards that is afforded everybody however it can be forfeited and there's there's one good reason behind having a policy like that if the reopening bar did not exist it would create every incentive for a non citizen who is removed from the united states to sneak back into the united states as mr pretty it did and then to essentially remain under the radar until the government learns of that person's presence then they would force the government's hand three litigate a final and lawful order of removal clearly congress intended to protect to prevent that exact procedure from happening by having the so is it your position that once the person is removed to another country you can move to reopen on any basis as long as it's done within the ninety day period that's correct yes your honor one is a ninety day period get the ninety day period begins from the actual physical removal if i'm not if i'm not mistaken you know another another procedural safeguards that would also like to bring to your honor's attention even though mr p t o waived before the immigration judge his right to appeal to the board the government nonetheless we're waiting the full period to actually physically remove him from this country it's relevant in as much that the united states has it prides ourselves on the procedural safeguards that we give all under the constitution although non citizens are entitled to different protections mr prettier received every possible protection that could have been afforded  government prides itself on all the due process that is giving to immigrants and although although the court and as the court has this as the circuit has held pete non citizens in this country are entitled to different rights under the constitution yet the constitution nonetheless applies so you're saying once the petitioners remove from him from this country he can then file a petition to reopen with that limitation one petition to reopen within the ninety day period and under one thousand two hundred and thirty one a five by re entering the country illegally that right is forfeited but wait a minute i thought that's where we were he's removed he's been removed been reinstated as no i'm sorry your honor i misunderstood the question i'm talking about yes we were in a situation where we are now you got a restatement order correct he wants to challenge the original removal no your honor so there is a permanent bar however i would also like the government also like the record to reflect that mr purdie again engaging in self help took it upon himself took the law into his own hands to reenter the country had he just presented himself at the border he could have obtained the relief that he now seeks he could have asked for no opportunity for him to reopen once the reinstatement is put into place and is removed that's correct but that was by his own doing also women answer his question also changes your answer to my bar he doesn't have that right is that correct your honour's interpretation is correct so he doesn't have the real does not he no longer has i was specifically referring to had he not re entered and had this been the original proceedings he he would have had a because of what he did after the fact he has skewered himself in terms of he had due process from your perspective but that process is over as far as real and reopening is concerned in and if i can have the courts ind dancer your honour's question it's over it's over but that's that doesn't the increase doesn't end there he still under the the united states government is still giving him procedural protections by a lousy him to to those individuals or have the opportunity now do have the opportunity under miller and moralities garo to file motions to reopen in absentia doesn't affect our argument to the point is there is a due process violation below yes in those cases the due process violation was in abstention in ours it's mental competency that's the core issue you agree at least this much with the government that your client coming back into the united states  procedural statute it allows you to expeditiously remove an individual from the united states his i want to be clear on this because his filing of a motion to reopen does not affect that if if he wasn't in withholding only proceedings he would have been removed and his motion to reopen would not have stayed the execution of that reinstated order the purpose of the statute is to expeditiously remove individuals who have previously been removed that remains unaffected by his separate statutory right to file a motion to reopen the distinction the government attempts to make on the is immaterial there's a due process violation below he needs to be able to get to it because he's never had the opportunity to get to it before it appears that the government is just ignoring the mental competency issue but up so from your perspective your client goes back to mexico comes back into the united states even though he under the case law the government so i came out of the statute he has a permanent bar against same you're saying that because of his mental issues he retains that right and he can't really be removed in any of it because of the withholding separate claims the right  one o two of miller that's if we adopted the government's reading of one thousand two hundred and thirty one dollars a five k at that it's a permanent bar a non citizen whose due process rights were violated in the earlier removal proceedings this is due to lack of notice you can insert due to mental competency could have the resulting removal order reinstated against him without ever being afforded an opportunity to challenge its legality and then it goes on to say we clearly can't do that that would violate the constitution and so although does it make any difference as your opponent says that these were cases involving in abstention where nobody ever got any notice at all where as he says here your client has received lots of notice does that make any difference no because he's attempting to map on that due process and like as if that's the only possible due process violation there are multiple due process violations i mean there are multiple possible due process violations ours is based on mental incompetence the petitioners are similarly situated neither of them have the opportunity or the process available them to think you're wonderful thank you so much thank you and your for yeah and we really appreciate pro bono help so thank you both the case just argued is submitted