victim he has applied for a u v which is a visa bill to victims of serious crimes in the united states who assist law enforcement in solving those crimes and in light of his pending application for a new beast that he did precisely what the usual practice that continuances are granted by immigration judges rather than the the ira right the b i a is an appellate body right yes you're exactly right the pointed us to a u c i s directive that seems to say if you are put on a wait list as your client was that that then is the normal circumstance for the removal proceedings to be stayed so putting together your argument and additional information we've been given about you c i s it would seem that there are two inconsistency in the board stis cision the st has to do with what you've been arguing that their prior precedent their practice and the nd has to do with sort of the left hand and the right hand not apparently knowing what the other is doing which is you c i s has one interpretation of what it means to be on a wait list but the b i a seems to have another one triggered here and that he should have more time the issue with the u s c i s directive shows that essentially when when it issues the type of letter and makes a weightless determination like it has that that does show that that every every court of appeals to have looked at this and the board itself have found that the sanchez sosa framework applies in the motion to reopen or the motion remain and posture and i'd like to note here because the government points out that among the four other circuit court cases we cite in the amica cites to concern motions to remain and but motions to remain and filed with the board during the pendency of an appeal but putting forward new evidence and asking for a rebound back to the judge the immigration judge motions to remain and are treated by the board and by reviewing courts exactly the same as motions to reopen and that has been the case for decades what we see in all of those cases is that the courts of appeals find that say is the test to apply and indeed i would note here that the l n why i case which is the board's rd presidential case in this line of cases interpreting sanchez so set is itself a motion to remain and case there we see the the applying that framework in this posture and i would just further note as we say in our reply that that stands to reason given how motions to reopen are adjudicated the relevant pran in a motion to reopen cast asks whether the individual has shown crime of eligibility for relief and so that that primed of the inquiry requires this court or the agency to posit that the person is back before the immigration judge hypothetically and to ask if there's a reasonable likelihood that he or she would get relief so essentially the standard is providing the bridge back to whatever the criteria are or the framework will be for the immigration judge in making that determination and so we are asking here that this court join every other court of appeals to have looked at this as well as the board in much of its previous presidential and non presidential practice and find that the center has those the case controls this inquiry and to direct the board to apply it which is they say the include an instruction to send it back to the immigration judge and apologize we are your honor we are asking that this court direct the board to apply the sanctions so said framework but we do think that on this record there is only one reasonable and appropriate outcome that the board could reach given application of that standard because the crucial issue is whether he's shown that the beast has primacy she approvable and the government that the agency has not contested on indeed in ellen why the agency called the type of letter that he has  board refused to do that all right if your position is correct and we say that it was an error or an abuse of discretion for the board to refuse to remit and it seems to me that that's as far as as we want to go at that point it is up to the immigration court to apply sanctions so sure i don't have any reason the believe that it won't do so but we shouldn't program it that decision when the immigration court has never had an opportunity to make your honor you are correct that the board has not had an opportunity at this point or the board i should say has it had an opportunity the board has failed to apply  absolutely right the immigration judge wanted you to care whether a continuance is warranted here when i say that we think the record shows he's made a prime facie case we think the record shows that all that is that may be true but i don't understand why that's not concern i concern is whether the board's order ought to be refer us to vacate and the case sent and the board wanted to send the kates reopen the case and send it to the well i hear from your opponent now you have two minutes reserved thank you at this time would attorney bates please under your device and introduce yourself on the record morning or owners christopher bates for the respondent j h s or relation provide that a petition or who has an reopen for the purpose of remey ending to the immigration court from the papers it's evident that the purpose of the remain was to enable the petition that to bring to the attention of the immigration judge the fact that the petitioner had been placed on the on the waiting list for you visa or approval and that that the petitioner was stuck in that position because the that have been called to our attention indicate that being placed on the waiting list right would have constituted sufficient reason for the i j a to have granted a continuance or some similar relief which because of the board's action that titian and never had a chance to ask for that's what the problem that i see he has with this the eligibility and the likelihood that the collateral equal make a difference the machines are the primary factors there are of course secondary factors that can outweigh those factors as was the case in l and y and so asked the question of if this court determines that the most reopen is properly construed as seeking agreement and for purposes of continuance as we have our you know our brief the appropriate thing for this court to do would not  obligation when the immigration court is confronted with the next motion which you all anticipate will be a motion to continue to apply whatever precedent is available and and to exercise whatever discretion the immigration judge has and make that decision but i don't understand why there's anything for the for the board to do which not the board which is being asked to grant a continuance the board is merely being i asked to reopen and certainly given the the department's director of the u s c i s director it seems to me that there is there is good reason for reopening this this case there has been a significant development that on the face of things is likely to provide the petitioner with somewhat leaf that was not available for him to seek at the time of the original immigration court proceedings yes your honor i think that the  relevant consideration is how the sanchez associate factors would apply given the context here is a motion to reopen it could be the case that application would be similar as in pending proceedings was a motion to reopen to issue a stop or go order that if it says stop it the immigration judge never gets a chance to consider any of the factors because the board has said no emotions to reopen are categorically can't be used that you're arguing from that the board has the discretion to now come up with a categorical rule that motions to reopen are somehow different be applied in the same fashion as in the context of a continuous motion and many proceedings of certain factors should be given more weight for instance if the if the administrative deficiency interests might be given different weight given the motion to reopen contact and so it's not you know no time yeah go ahead but boy it strikes me that what you're doing is contrary to what congress intended when it gave this type of relief to people who are here if you happen to be a victim of a crime before your immigration  proceedings have closed before the emigration judge well then you're eligible but if you happen to be a victim the odds of crime there after and it's obviously new circumstances that could not have occurred earlier gosh well then you're out of luck i just at it it just strikes me as being inconsistent with what congress wa it that way i read the board is saying ok you can be removed but if some day you move up the wait list then you have a chance to come back to this country and we do know that the agency removes people and all sorts of circumstances when they shouldn't have been removed and it seems to me your position is well  folks who have been placed on the waiting list regulations do of course also provide for a state for you to see the state ever move all from the agency while they are in pending proceedings so there are you know various avenues that ind can seek protection out of the regulatory scheme the agency's policies thank you thank you thank you attorney bates you can be sure to face this time attorney austin please reintroduce yourself for the record  paige austin for the petition or just with a few brief points in response and i'll start with the government's point that motions to reopen are disfavored i think judge lynch said exactly right here that that would run contrary to congressional intent and that's not only because of the u v said but because of the motion to reopen the statute this is a timely motion to reopen congress created a very narrow exception for when motions to reopen can be granted when they're f within ninety days with new previously unavailable evidence and that is exactly what mr granada's has done here whether he has other avenues of relief open to him administratively or through a current policy of the agency cannot that right given to him by congress under the statute to file this timely motion to reopen and asked that his case be be reopened and the nd point that i would respond to as the government has said a few times that the board m upon upon looking at this again decided to waive the sanchez sosa factors a little bit differently and i would just repeat our point that that's not how the motion to reopen test works the motion to reopen test asks whether the individual is prime if they she eligible before the immigration judge and so that necessarily draws on whatever the case law is that the immigration judge will use when this court reviews a finding by the board that an individual is  not for example crime of the issue eligible for asylum we don't ask what the requirements are for asylum in the motion to reopen contacts we asked what the requirements for asylum are full stop and so to hear this court looks this quarter the or the agency if it's properly doing its job should look at what the standards will be before the i j a those are the sanchez so as the standards there's no reason to to reweigh them or to come up with a different test just exactly as as your honor said there's nothing left for the board to do here this case should have been reopened and remain and it and to give mr granada's an opportunity to seek a continuance while his meritorious u v says pending that's time  thank you that concludes argument in this case attorney austin attorney bates who should disconnect from the hearing at this time