seven zero one a and the idea that this is something that is should the agency discretion and i'd like to address why that isn't the case here and we look at the cases that were cited by the government as well as  the district court and what you'll see is that there in those cases an action was brought on something completely distinct from the a p a they found no jurisdiction no waiver sovereign immunity and then the wanted to be reviewed under the a p a and if you see the yawning difference between that action that they're talking about the heckler case death row inmates were seeking a more you main exterminating drug under the food and drug administration they found no seven unity they of that they said no jurisdiction in any sort review in the a p a and finally the case cited by the district court was norton versus mount st helens which is right under the mount st helens national canuck monument act i guess it was done you know  eminent domain they gave property to the general of two hundred thousand dollars he didn't like it he wanted more he sought review or the a b a here we were in the proper form this was a action brought under the immigration nationality act we properly filed a motion to reopen and our argument is that a p a has jurisdiction because we claim that you know we were making two arguments number one we said that the salter case a line of ninth circuit cases dealing with delivery non delivery can be applied to bunny should be addressed they didn't address it at all and then we also made a global argument that the eight c f r one three five point two is so rigid and mechanical that it denies due process the federal courts well in this case what we what we were asking them to find that the actions of the agency violated the a p a because number one they did not address the appellate argument and the argument that was set forth in the motion to reopen and we did make a broader argument we did make a constitutional argument that it see if i had simply be have petitioned for review before the ni right withheld and he said there's a very specific case law the ninth circuit only does orders of removal so there was no jurisdiction to do a direct petition for review there is no jurisdiction the only place i could go was district court there's very specific says you know that that particular statute simply says you have to somehow prove you never got the map or it was you gave the the agency a new address in a timely fashion and they sent it to the old address and we're saying that that is so rigid mechanical and yielding that it does violate due process so we're making both of those arguments and i think you know the jurisdictional question is i think there is jurisdiction i mean certainly  he said policy you must provide a reasonable action for its actions and again i mean you know in this particular case counsel the government in its brief has indicated that you do have a  have you done so we did yes two things about that number one you just take about three years and change so that would put me you know considerably back in time and number two i did file it and i just don't know how of that petition for he was that once the inevitable grant of the u v s of the case would be remanded to the i j a so the state that was in place based on the following just review there is no longer involved now they haven't gone after my client i can from the ministry of state i haven't done it as they haven't done anything the position of the service is that they will not deport people with you be suspended absent certain circumstances so he's not really protect at some point so no formal no formal state if we move the proceedings he's out on bond at this point oh he's out on a thirty thousand dollars bond but there has not been they haven't tried to detain him and so that happens but it's not imminent so i mean just like you know there's regulations on that unless the deportation is imminent there's no reason to stay but but but your argument here in this case is that this is a foul agency action subject to review the then that they refused to even address our legal arguments and it's a legitimate legal argument the idea that this is line of one circuit case law that deals with delivery versus non delivery you know regular mail versus sort of i why should not apply to the ministry of know it's like a symbol there's so many other things that can happen in life and law why somebody may not respond to the requests for evidence force majeure and if i could sit down somebodies infirm there's nowhere way to go with it so the district court in this matter dismissed for lack of subject matter jurisdiction if we disagree and determine that the decision is actually read then what do instructions to addressed americans you obviously you could make a ruling and say that there are actions by the a p a and he sent it back and grant the motion to reopen but that might be a little we don't really have the record may please the court my name is briana you on behalf of the us government federal defendants in a police this court should affirm the district court's dismissal for two reasons first the district court properly found that requested relief which is an order compelling the agency to grant his motion tree open and reissue requests for evidence so i can't this court should affirm on the alternative basis that plaintiff hasn't stated a claim and concedes that he hasn't complied with the regulation four motions tree open petitions that have been denied due to bandon men now there are two forms of relief that plaintiff has requested here which both call for the agency to act in a way that is not required by law first the decision to issue a request for evidence is within us c i s is discretion per the regulation  may choose in its discretion to either deny the benefit request for ineligibility or it may choose to request more evidence now there is no legal requirement for u success said you visa petition under these circumstances when the male essentially for some reason mr wright said in council never received that your honor the government's position is that by filing the second petition it would resolve these concerns and it will allow the plaintiff to to be able to get an adjudication on the merits  and that would be able to resolve the concerns that he has before the district court on plaintiffs as applied challenge on now the regulation was applied to him however because the court found that lecture section it didn't address the as applied challenge however  plaintiff's complaint are insufficient to support a challenge to the regulation as applied to plaintiff plaintiff has not alleged how he has met the evidentiary burden and the ever danger burden is under the conceded that he hasn't been able to comply with that regulation the bindman regulation one of three point five eight two three he didn't comply with the applicable requirements he's he had a claim of receipt which to the jew to cater here took the proper action in appropriately determined that the motion did not meet the applicable applicable requirements are you are you addressing the merits part of it however the government did submit briefing in its motion to dismiss to address the the merits of the how the regulation was applied to  would think that even a denial on the merits would really moot the issues in this particular appeal wouldn't it because that could result in another review proceeding as a practical matter can't really speculate to what a denial would do what i do but i can say for sure that if his you visit was granted it would mute out this case which is why the government's position is that he be that he was concerned about race judicata that was one argument and the other thing he said was he was afraid bad who can lose his place in line or something that it would take a long time three years or something to get through the new petition there was some suggestion that if he was it allowed to go for are we open somehow you kind of get through quicker is that is that true or not true  trust both points both parts to your question about race you to cut it first of all this application here under the regulation it is the thirteen i find something is deemed as a band it may be denied either on the record or as a band in or both so here there is no merits decision they take us c i s could have denied it on the record but instead they just put it in abandonment instead and then  far as the place in line i definitely understand the courts it is very difficult in that situation however the promulgating this regulation there's a strong russia now for the agency to be able to develop a procedure for they don't get a response to something that they cannot operate on assertions of petitioners saying i didn't receive this i didn't receive this this allows the agency to be able to continue moving forward with petitions now i know i do understand the the difficulty about the place in line however the  petition here did receive all of the procedure that was afforded to him by the regulations and the is in c needs to be able to develop a procedure to deal with assertions of non receipt well you start from fifty four and a half months ago so that is about from twenty fourteen petitions that were filed in twenty fourteen is your client with your client be willing to enter into mediation over this you can maybe see how the process goes with the new application and hold this case in advance the his face a challenge to the regulation as a whole and he says that it was brought in the his abridging or pleadings in the district court however it is not in the complaint it was brought up for the first time in his opposition to the motion to  in the district court as well as the government didn't have any occasion to consider his or brief that matter when he challenged the regulation it capricious now i would like to emphasize to the court that that there is a remedy here and he isn't precluded from refiling in he has pursued that remedy for relief in that this is the government's position is that this court should affirm the did jurisdictional decision that the district court decided because it ultimately the relief that plaintiff has requested implicates t exercise its discretion in will and even see here decided in its discretion not to exercise that so the district court identified that in the district court decided that it could not require the agency to briefly the idea about failure to comply with the regulation that's our whole point it's where well ian the regulation says the only way you can open a case based on the abandonment is if you can show that it was mailed to the wrong address how does one do that you go to the post office and you know deposed the mailman there's no way to do it or that if you gave the service a timely new address in a mail to the old address that's part of our problem number two the idea that we did not bring up the facial challenge in the complaint page eighty six section b the regulation i don't see if are one of the three point two b thirteen then i was due process so we did raise it curiosity has been slated for the last couple years i mean if they were you know to agreed to reopen i mean all work you know unlike these cases where you know death row inmates want to different drug we're not asking for much we just want the case to be decided on the merits and never got to the merit because we have no idea what they asked