your honour's i'd like to reserve two minutes of rebuttal time apart from the failure of the immigration judge to secure a knowing intelligent waiver there are two important legal issues raised by mr  his case that the court should address today the first is that the agency's regulations appeal waivers are final are inconsistent with the immigration and natural nationality act the second is that an  unrepresented immigrants a file should be ordered produce during proceedings where there are factual disputes warranting admission of the a file consistent with the court's holding in versus holder turning first to the appeal waiver issue the agency has two regulations that relate to the finality of appeal waivers the first is that a notice of appeal cannot be filed if there has been an appeal waiver and the second is that appeal waivers  final this amounts to an instant waiver of appeal rights that is invalid because it exceeds the agency's scope of authority as granted by congress the reason this issue should be decided in this case is that there needs to be clarity on this issue this was highlighted in the amicus brief that was submitted in this case and it is also highlighted by various decisions that the court has reached in the to rule twenty eight submissions that we presented to the court the agency's appeal waiver system results an unrepresented immigrants losing all legal rights with no recourse this court has characterize the summing up the appeal waiver is invalid either because it was annoying involuntary or because it's not permitted under the regular under the statute so we would request that the core invalidate the regulations and remain on the case to the board of immigration appeals so that it can remand the case to the immigration judge that it can hold a hearing where it can have mr oriana have a proper  hearing on his removal proceedings so what do we do with the alternative five holding by the b i said assuming jurisdiction there's nothing here so i think we have to look at the  board's decision carefully and it is clear that the disclaimed jurisdiction before they issued their advisory opinion that mr oriana did not meet his burden but then second the board decision with respect to the advisory opinion that he didn't meet us burden of showing relief from remove ability is that there are a number of due process violations that were not corrected by the board as raced in our briefing this included the failure to advice mr oriana of all of the avenues of relief available to him including cancellation of removal and adjustment of status also there's also the due process violation with respect to and there are the issues in the record relating to the factual inconsistency that could have been resolved by the a file so there are a number of due process violations that still exist in this case and under the because this court has found that even where unrepresented immigrants haven't specifically challenge the waiver the court has gone back and reviewed the record to determine whether the waiver was sufficient and found that on represented immigrants do not need to specifically challenge the waiver with respect to the other due process violations an argument could be made that it would be futile because the board disclaime jurisdiction however i think that even mr oriana as letter appeal to the board included additional facts that would support the cancellation of removal relief which was not addressed by the immigration judge and so an argument can also be me that he did research officially based on this court's precedent the general contention that there were issues in terms of properly advising mr oriana about all of the avenues of relief and the third exhaustion argument is that with respect to the a file of mr oriana raised factual disputes at the hearing within the hearing he challenged the government's attorney's statement that he had been removed twice as well as the issue relating to his legal permanent permanent residency status and so those were issues that he had raised down below and when the board of immigration appeals reviewed the record they were put on notice of these factual disputes so we believe that mr or serious consequences to the agency's appeal waiver as final holdings because it exceeds the authority that congress granted under the immigration and naturalization act the act itself only provides to circumstances in which an order becomes final the first is the a for amends by the board and the second is the expiration  the time period the appeal waiver regulations don't fall into either of those categories and for that reason they agency has exceeded its authority furthermore in ocampo versus holder this court held that the finality statute is clear and ambiguous such that a removal order only becomes final and those two circumstances and so if the court follows its previous precedent in the ocampo vs holder case then court held that individuals in removal prefer proceedings should be provided with their a files in that case the court explained that the x mandatory access law entitles immigrants in removal proceedings to any records and documents not considered to be confidential that pertain to the aliens admission our presence in the united states states and acknowledge due process violations if the a files were not provided in that case the court held short of saying that the a files need to be produced in cases where an immigrant has not asked for the a file here mr oriana did not ask for is a filed to be produced but he did race factual disputes in his underlying hearing that would bandy the production of a file and as the court recognized intent versus holder they can't imagine a good reason why you would not produce in a file in situations such as this and so for that reason based on the same reasoning that the court held that a file should be produced when an immigrant specifically asked for the production of the file we believe that  afternoon your honor see me please the court stephanie had this for respondent this court did not address the validity of the appeal waiver or regulation in order to dispose of this petition for review instead the court should deny the petition based on the fact that the court alternatively considered the merits of the issues raised in the petitioners appeal and determined on the merits that the appeal should be dismissed the board committed no error when it concluded that the appeal should be dismissed on the merits because the petitioner never raised any challenge to any type of issues during his removal proceedings and the factual claims that he made in the letter supporting his appeal did not even allege prima fascia eligibility for any type of relief from remove all and as the board he was never a d of those potential is correct he was it vised during his first master calendar in front of the immigration judge he was given a thorough explanation of the type judge at the second master calendar hearing did undertake a several page questioning of the petitioner to try to elicit whether he might be eligible for various types of relief after you  permanent resident based on this record of the based on this record it appears that he was previously a lawful permanent resident however he conceded during his removal proceedings that he had been removed and he also conceded that he had illegally re and heard the country which was what was used to support the charge of removal in this case additionally getting back to his the appeal that he filed to the board he never he never alleged in that that he was a lawful permanent resident he never no use for sitting pro se in writing a letter after these proceedings  in the context of the way that it the regulatory issue and also knowing involuntary ok so the government's position in this case is that the board's decision should be read as indicating that there was no challenge that is our position in this case that in his appeal here he did he did not bring that challenge that i'm sorry separate question the the board held that it did not have jurisdiction because of the appeal for would you agree that jurisdiction and way of appeal are two separate concepts it that is that is basically what we argued in our brief the the footnote that we have at the end of our brief explains how looking especially looking at the board's decision in this case because it did reach this alternative conclusion on the merits that it wasn't while it did present it has its paragraph the second to last paragraph as one dealing with jurisdiction it was really focused on the this should be interpreted as a claims processing jurisdiction what do you think amount i think it what i think happened in this case and this is what was presented in our brief is that the board recognized that there wasn't any challenge being raised to the knowing involuntary aspect of the waiver in this case but perhaps because it might have felt that there were concerns about the knowing involuntary aspect of it still then went on to address the merits of the appeal which is i'm not sure quite understand the concept here because to provide a different context for example in the criminal context  way but it does not deprive us of jurisdiction and it seems to me what the board said is that an appeal waiver deprived it of jurisdiction which seems to me plainly wrong that the want to set a lecture they didn't say we're going to force i mean so in this case if the court believes that there wasn't actually an appeal waiver it doesn't believe that that's something that could be properly it can't be properly conveyed in this context than this court precedent does say that if this court interprets the decision the board's decision as actually reaching whether there was an knowing and intelligent appeal waiver of appeal that this  court then can address the merits of it however and this is if we address the merits of it there's nothing on the record that indicates that the i j a actually advised him that he had a right of appeal and he said i waive that right correct  no i don't see that in the in the record in this case your honor however if that's the if that's the concern that the court has what this all gets back to is whether the petitioner was deprived of his ability to file an appeal and have his appeal considered and in this case his appeal was in fact considered based on what he presented to to the board in his notice of appeal would you agree with me that the board itself lacks the ability to declare a regulation in conflict with the statute i believe that is our that is our position yes and so that issue is not waived as can be presented here today and what's the government's position on that issue go ahead the government's position well initially is that the court doesn't need to reach that in this case however a to the merits the the government's position is that the appeal of the appeal waiver regulation is not is still in line with the statute because it's a it's it's a reasonable interpretation of the second part of eleven eleven zero one eight forty seven b which talks about the expiration of the period in which the alien is permitted to seek review of the of the order and heard by the the immigration judge the as we laid out in our brief the statute is silent as to the the  ability to waive the the right to an appeal and that this it is and a permissible interpretation of the statute to say that that appeal period could be waived  the benefits there are that differences that there's a difference between the waiver of appeal and administrative finality wouldn't you agree i'm sorry well just that even when somebody has waived an appeal there are still ways that they can go about having that appeal waiver considered either by the board or in the context of a motion to reconsider having  that considered by the immigration judge as well so the simple fact that someone has waived appeal does not necessarily terminate all ability to have the the case continue to be considered thank you counsel thank  thank government raised the issue about the expiration of time period language in the finality definition within the act and there was a significant amount of briefing on the statutory construction issue in both parties briefing and i think here it should be clarified that the expiration time period needs to have some meaning and that main meaning can't be instantaneous waiver of all  the time period needs to be some length of time that needs to pass and then expire and then with respect to the distinction between waiver of appeal and finality the board did independently review the record and find that mr oriana waived his appeal rights but if you look at the record all that mr oriel and i was asked was whether his removal order was final he was never expressly asked whether he waived his appeal and so the board of appeals independently found that he had waived his appeal rights even though he never actually did his appeal rights and unless your honour's have any