proceedings when you stop and think about it there are two legal points that are really important that i think need to be set forth the beginning number one the agency's own regulations eight c a four two zero nine provide that in the u person granted asylum can seek adjustment of status one year after having been granted asylum my client was granted asylum in two thousand and two the last seventeen years he's been filing requests to adjust his status on those requests have been denied the agency's own regulation eight c a four two zero nine point two provides the following the agency shall quote notify the applicant seeking adjustment in writing of the decision on his or her application to which there is no right of appeal of a denial but us c i s will notify the applicant of the right to renew the request in removal proceedings in other words the government's own the agency's own regulations contemplate that the asylum will have the right to challenge that decision when he or she is in removal proceedings what's happening in this case is that the government is essentially creating an entire class of people who've been granted asylum who have the right under the agency's regulations to seek a just meant of status the agency is denying their applications but then refusing to put them into removal proceedings where they would have the right to challenge that decision before an immigration judge so good they counsel what authority gives us jurisdiction to tell the agency to commence removal proceedings well and i believe this is an appeal that has issues of first impression this court but the court has sort of touched on issues that affect this decision previously in the case of quite fun wanting versus united states which the government  acknowledges on page thirteen of its brief this court specifically found that twelve fifty two g eight u s c twelve fifty two g which was the statute that the lower court relied upon to to find  held at twelve fifty two g does not preclude it's a review of decisions made prior to any decision to commence proceedings so in other words all of the cases that the government's relied upon in this appeal are cases where the alien is in removal proceedings and is challenging the decision of whether he or she should have been placed in the proceedings or the timing of when those proceedings occurred that's not what we have here we have someone who's saying please put me to mobile proceedings and i'm curious if there is any case in all of the jurisprudence in the united states that says a court has authority to order the agency to place well in two other sister circuits the third circuit and the sis sixth circuit both decisions were cited in our briefs and i find it very telling that the government does not even address them in its opposition or answering brief but in the third circuit in peano versus gonzales and then in the six  have the right to challenge i'll in the move will proceedings the denial of his adjustment of status application and the agency as they're required to do advised my client that you can you cannot appeal this decision but you have a right to challenge it in removal proceedings but they're not putting him in removal proceedings and so essentially on the continuum haven't put him in it yet yes i don't understand why you think you're the decision you want reviewed is the decision not to not to commence removal proceedings but there's no decision to that effect he just isn't in removal proceedings and when when will he ever have a right to adjust a challenge to the failure of the agency to place the person in removal proceedings it's my understanding your honor was at that decision dealt with the fact that the agency was not putting the client into the whole of the proceedings but was continually removal proceedings let me just say getting to the to answer your question dear honored and pino versus gonzales the third circuit held that the immigration authorities denial of an application of adjustment was final within the meaning of the a p a because no remov proceedings were pending and then the circuit the third circuit rejected the same arguments presented here the court reason that quote if the agency does not seek to deport pino there can never be an appeal within the agency by which a higher level of administrative authority can be revoked invoked to review the legal determination made by the agency correct but i didn't see any language in either of those cases giving us jurisdiction to order the agency to commence removal proceedings that's why i'm asking the question well where in those cases are in our home plain before below the court of the lower court we sued based on the a p a arbitrary and capricious standard and so what we're saying is that it's arbitrary and capricious that the agency is not putting him and making a decision affirmative decision not to put him in terms of a certain alice in wonderland quality to it dots frankly but here's the thing  decision is that i still don't see the light and i respect we apologize your honor i guess what we have in our brief quote is the sixth circuit rejected the government's argument that quote because the agency can elect to institute removal proceedings against hosseini at some future time the agency's denial of the application is tentative not final and so what but that doesn't tell us that we have authority t compel the agency to commence remove a proceeding well it but the court found that the court had the right to review under arbitrary and capricious standard the decision to not put him into removal proceedings and that's what merely reapply for admission as often as he wants this approach suffers from the same flaw quote there can never be an appeal within the agency by which any higher level of administrative authority can be invoked to review the legal determination but then said that all in the context of determining that this was a final decision not that it gave them authority to come pale in the agency to act but that it became final  had applications of adjustment that were being denied he challenge that and the six circuit ultimately concluded that the decision not to act was a decision for purposes of the a p a correct but did not go further to the following quote the agency and i've already read to you but that notify the application who seeking adjustment of status in writing of the decision on his or her application to which there is no appeal but that us cia else will us c i s will also notify the appl of the right to renew the request in removal proceedings in other words the agency's own regulation contemplates that it will put the applicant into removal proceedings this is an unusual case because obviously most people are not going to be complaining about the fact that they are not in removal proceedings and but but you have to ask the question and this is what we try to raise fellows why would the government do this why would the government care and the reason is because they know that perhaps they will lose before an immigration judge will look at the grounds and say he's not removable and that then puts him on the course to being able to apply for a green card and ultimately become a citizen but on that continuum what the government is doing is they're putting the brakes on the process by saying we're not going to put you into removal proceedings and once we do that you will never have the opportunity to have an immigration judge review our decision sounds to me but you can stay but you remedy and that's an order compelling c i s to place him in immigration proceedings so that he could renew his request want to just move status before an i j the district court correctly dismissed the complaint on three bases first twelve fifty two g bars jurisdiction over such a request second because twelve fifty two g bars relief the a p a also bring two cruise relief and third the denial of discretionary relief can act form the basis of a due process violation the district court got it right this court should have first judge gordon properly held at twelve fifty two g precluded jurisdiction to review c i s is determination not to commence  proceedings that's the decision and again i know this is a very unusual we certainly haven't uncovered one with a similar fact pattern because as plain as counsel correctly noted not many aliens are looking to the place and remove during the transcript of the district court argument i believe plaintiff's counsel asked that he did reach out to the agency to ask and they e mailed him back saying no they weren't going to he can address that was over there was no formal administrative proceeding forward all together abandon the endeavor and that's kind of what happened here that the agency deny the adjustment of status decided though it would not move forward with initiating proceedings that decision is squarely in compas in twelve fifty two g and two cases from this circuit are particularly instructive and that's the kitty ye kitty lease case and that's the jimenez angelus case and both of them talk about the decision whether and when to proceed or to with initial initiate remove proceedings are accomplished by twelve fifty two g so the district court got it right here twelve fifty two covers a situation there's no jurisdiction because that's the only relief the playing of  plaintiff's counsel relies heavily on those cases to say or to argue that he has a p a claim those cases only dealt with finality of an agency decision for purposes of an a p a claim and again that is reviewing adjustment of status so both pino and hosseini say that where removed proceedings are not pending the denial of an adjustment of status is final agency action that's that's not even an issue here because e mail while he's seeking to review the as he as he stated when he was here up here he's only seeking to review the agency's decision not to commence or move proceedings he's not seeking to challenge that tomorrow  they change their minds but something happens and they decide well you know i think we're going to commence removal proceedings against of course the agency retains that discretion to decide whether and when it's going to initiate under the way if what you have is essentially an e mail saying well we're not going we're not instituting these proceedings but they could decide tomorrow that they were if planners complaint were drafted differently and he actually d of the adjustment of status decision or the nile then hosseini and pino may come into play they would apply of course but then they would be maybe relevant to this discussion but they're not what are the possibilities that the government and this particular petitioner could work this out somehow that the government would entertain a petition for just one of status without all the convolution decision is made denying the adjustment of status that ought to be a way to have that review well again i just want to be clear the complaint is not seeking review of that decision no where in the complaint does plaintiff ask for rebel what he wants to accomplish before  proceedings what would have to happen is plaintiff would have to concede somehow that he his asylum status should be a vote and then an issue removed proceedings would have to be initiated but it would have to be initiated by another component of d h us because sounds to me like a catch twenty two why can't we get to the heart of the matter you are the heart of the matter is simply that plaintiff has a protected status he's an asylum he's not being placed removal proceedings we understand that he's unhappy about the decision to deny him a just move status but he can reapply he's not in limbo wind with he denied it just he was denied in two thousand and fifteen and could have sought review  and he could have he could have sought to reopen father most to reopen the proceedings he could have sought filed a motion to reconsider the day now he didn't do that and certainly he may reapply there's no limit on how many times he can apply he can certainly reapply prove that he warrants a favorable exercise of discretion the circumstances it changed and the decision may well change then but he's not in limbo here i mean he does have avenues for that he can take and further steps that he can take to maybe get adjustment of status but on the facts before the agency on the record for the agency he didn't warrant it just with the status at that time and i hope i answered your questions your honour's questions about husseini versus pino if ok i also want to address the district court's order that discretionary did the discretionary relief cannot support due process claim or even a mandamus claim for that matter neither of those issues were addressed in plaintiff's opening briefs our position is that those arguments are waived but in any event there they have no merit as the district court concluded it due process claim both both of what they're asking for a discretionary relief and a due process claim requires a constitutionally protected liberty interest or property interest mandamus relief can only compel the performance of a clear not discretionary duty and here plaintiff has a point to either one of those so simply put you can't force you can't use mandamus to force agency to take an action that's discretionary and the denial of discretionary relief does not form a constitutional right and unless the court has any other questions five things are required he applies which he did several times he's been physically present for one year which he has he continues to be a refugee nobody's claimed he hasn't he has not been firmly resettle in a foreign country he's never agency's decision on the merits well where we are that's why we think they're completely wrong and that's why we want to judge to review their decision live but you want to via removal proceedings correct well apparently that's and that's the way to do it under their own regulation your honor again f which is red it's so clear and it's so different that language in two forty five about you have no right to be placed into forty perceiving is not in two  lly for you to get the review that you're seeking to be placed and you know they will wait a minute you heard miss peoples for the government's statement that you have an absolute right to reapply right now your honor again that's the case is that mr patten discussed with the court he has applying for over thirteen not one single case in this country that holds that and the governor's admitted that if there are single case in this country that holds that the district court has jurisdiction to compel the agency to commence removal proceedings no your honor but we court thank you or thank you the final case on calendar for argument today if