lynch and i'll note at the outset that we do see some substantial similarities between mr gonzales car avails case and and the case in gonzales vega obviously most notably the jurisdictional question of whether this court has jurisdiction to review the denial of administrative closure and also the question of if the court does find jurisdiction whether there's an abuse of discretion and we believe that the court should answer both of those questions  remain and his case to the agency for proper consideration of his request for administrative closure but before we get there we recognize that the court will have to overcome prior precedent finding that it does not have jurisdiction to address administrative closure decisions by the agency so first of all address jurisdiction and in addressing jurisdiction what i'd like to do is is quickly run through this court's prior precedent and the limitations that this court has sometimes found impede judicial review of certain agency discretionary actions also i'll address when the court has found review to be appropriate and finally al address how matter of a t c and the board's decision allows for judicial review and in fact i believe anticipates judicial review of administrative closure decisions this court's prior decision in diaz coppa rubeus vs new casey obviously found that the court did not have jurisdiction to review the denial of administrative closure dia's court significantly found itself bound by this court's prior decision in kimi and the ins and the supreme court's decision and heckler b cheney the overarching consideration  we believe in both of those prior cases was whether the court is presented with a sufficiently meaningful standard by which it can review the agency action if there is no standard review cannot be had notably i believe in india's coppa rubeus citing to a key mian the court found that where there is a presidential b i e a decision specifying a standard for exercising its discretionary authority that luna all make clear that the court seeks guidance or some law to apply in order to find jurisdiction and accordingly that it's a very rare circumstance where the court will leave agency action to unfettered discretion this court now has the benefit of guidance and law to apply in reviewing administrative closure decisions and have a t c m is what supplies that law have a t c and supplies the non exhaustive list of five factors that the agency should consider when deciding whether administrative closure is appropriate and in fact at the t c and has been refined somewhat a subsequent decision that the attorney general has cited in their supplemental authorities matter of w y u which holds that the primary consideration for an immigration judge in deciding whether to administratively close the case is whether the party opposing the administrative closure has provided a persuasive reason for proceeding on the merits so i believe that the factors are we believe that the factor and have a t c and give sufficient guidance to this court to allow for judicial review of administrative closure decisions so if we review this case for administrative closure decisions i'm just curious in light of the posture now what well what could be determined i mean what's left with respect to your client's case well that's a very good question your honor  and assuming that this court does find jurisdiction obviously the next step is to determine whether there was an abuse of discretion and our position is that in this case there was an abuse of discretion the abuse of discretion occurs because the agency failed to inquire into the factors outlined and have a t c and failed to show proper consideration of those factors and failed to state a reason for its denial that's in accord with those factors and this court's prior precedent particularly in ahmed v ins osmund beholder finds that if there is an abuse of discretion the results art important the only remedy for that kind of abuse of discretion is to remain to the agency for proper consideration of the factors have been a little bit of trouble wrapping my awaiting any outside action or event that would constitute a basis for administrative closure i mean to to what end would we do that for proper review your honor for proper review and maybe i'm just missing it no proper review of what at their request for administrative closure so even though there's no i mean do you acknowledge that there's no no no longer any outside action or an event that would constitute or support him and screw closure we would still send it back and so that they could just say there's no longer a basis for an underlying basis were administrative closure i'm just having a little difficulty i do believe that legally that is what this court's precedent requires in v holder the court we mandated to the agency despite the fact that it wasn't clear that the individual was actually eligible for adjustment of status but the court reminded based on the abuse of discretion by the agency in their analysis and i think that's pretty similar to what happened in gonzales vega i mean if the court is to believe that twenty one years is going to be an acceptable wait time for the outside action then perhaps i'm wrong but i think that in gonzales vega the the eighth circuit was also acknowledging that there wasn't necessarily it's clearly irreconcilable with a superior precedent from the supreme court or and then bank or so could you  argument for a moment in terms of which specific higher authority is makes our prior precedent clearly irreconcilable well i think that the case that's probably most clearly on point is the supreme court decision in hechler v cheney where the supreme court noted that it is an exceedingly rare circumstance where  where an agency's action will be left purely to discretion and heckler v cheney is the basis for the this court's decisions in d s covarrubias in a kenyan and in other related what i think the heckler court would probably acknowledge at this point is that given that the agency has now published a decision that gives guidance to the court in terms of jurisdiction in terms of whether they can find an abuse of discretion that is now a reviewable decision and one thing that i'd really like to note for the court is that the ever to see a decision that's really the basis of of the petitioners arguments actually notes by its own terms that they anticipate review and i'd like to direct the court's attention to that the t c m decision at page six ninety five where the board states that the factors the enumerate are routinely evaluated by immigration courts the board and and i quote the circuit courts and they are citing in that section to hechler  the attorney general's assertion that these factors are not amenable to judicial review because they fall within the agency's particular expertise or they deal only with sort of the internal operating mechanisms of the board of immigration appeals simply don't hold water the agency itself in the t c and has acknowledged that they anticipate review of challenges to their administrative closure decisions now i'd like to address the abuse of discretion question a little bit further your honour's in mr graham vall i think that the abuse of discretion question necessarily implicates what actually happened in mr and in his case with the agency said when they upheld the decision of the immigration judge was that the department this is a quote from the agency the department of homeland security objected to administrative closure i had already informed the respondent that it would be denying his request for prosecutorial discretion and under these circumstances administrative closure would not have been appropriate the board's articulation of reasons to support the denial of administrative closure betrays the board's precedent in abba t c and the board notes only two factors in denying the administrative closure the department's objection though with no articulation of the reasons for that objection and the department's denial of prosecutorial discretion which the attorney general has asserted is outside the purview of the board's considerations they didn't address anything else they effectively went back and one party objection rules the day precedent and they also disregard their clarification in wy you that a party opposing administrative closure must articulate the reasons that the case should proceed on the merit because i'd like to reserve some time i will save the rest of my arguments but i do again assert that if the court agrees that the failure to inquire into that of a t c in factors or show consideration of those factors or state reasons for the denial of administrative closure is an abuse of discretion in that case must be remanded court jonathan robbins here on behalf of jefferson sesson sessions the united states attorney general good morning to all of you the issue in this case as my colleague correctly point out of the primary issue in this case is whether or not the court has jurisdiction to review yes i'm sorry the primary issue in this case is whether or not the court has jurisdiction to review post ever to see on the the board's determination regarding board's determinations regarding whether or not it wants to administratively close the case now that question necessarily implicates whether or not the t c on creates a meaningful standard for review because as my colleague correctly acknowledged this court's prior precedent india's cove rubeus against mckay's definitively held that this  review denials of administrative closure because there was no meaningful standard and the answer to that question is that does not create a meaningful standard now i know that there are specifically circuits which have held that does create a meaningful standard but those circuits are not specifically look at exactly what i said about the matter it was very careful in its language and said that quote it is appropriate for an immigration judge or the board to waive all relevant factors presented in the case including but not limited to and then it lists six factors so and then on the board gives a bunch of examples of common situations that arise in the context of administrative closure be available many years in the future so what the board is explaining is that it has to figure out what makes sense for a stock as docket does it make sense to adjudicate the case does it make sense to remove the case on the docket and wait is the case going to determination it's trying to make sense of authority that you'd like to show us a case or absolutely if you want to see that the factors don't create a judicially meaningful standard all you need to do is look at the board's next decision in matter of w i you matter of w i you actually dealt with a different type of minute in been a straight of closure situation and the board acknowledged and said look the six factors that we outlined in there should be considered but they're not really the primary consideration in this type of administrative closure the primary consideration in the in the type of linchpin but it does go to meaningful standard that's all that's only part of the argument the primary they do provide those six factors i think it is you know to gauge meaningful standard or at least seems to be from a fair reading of that just closure well it's not just the language of the t c on itself you know that's the that's the agency itself coming out with that so it's remarkable posture that this case is in now well well i don't agree your honor because it doesn't take into account and one of the things that in my view is a primary flaw in the circus rationale is they don't even mention heckler against cheney and heckler against cheney speaks specifically to this point because heckler against cheney considers that agencies may consider a list of factors in fact  the exact language because from heckler against cheney they're talking about the general unsuitability for judicial review of agency decisions to refuse and foresman and what they say is quote first an agency decision not to enforce often involves a complicated balancing of a number of factors which are particularly within its expertise so what's missing from the circuit's decision isn't what the what the supreme court is saying is of course you're going to be balancing a number of factors that's not what creates the meaningful standard you're going to be balancing factors whether there's meaningful standard or not what certainly does yeah but they did say that they don't acknowledge a meaningful standard that's a little bit different what will our argument is twofold one we think the board itself didn't set forth a meaningful standard or even intend to set forth a meaningful standard by the very nature of the fact that it didn't make the factors exhaustive you know there is a didn't set up a test that has to apply every time it was very clear about doing that in fact they say quote we emphasize however after listing the factors they say we emphasize however that these are examples only each situation must be evaluated under the on we were looking at situations where an alien was an eligible for a visa but then of course the board has a subsequent decision in w i you which didn't implicate that in w i you it's a little bit more akin to the situation we have here because the the person in removal proceeding there was seeking prosec l discretion now that's your honor alluded to this before and the remedy here is particularly problematic right now talk to me about that i'd like to hear your view well the petitioners aren't making any bones about it they're attacking it just as refusal to process to to exercise discretion because the practical reality of the way it's been implemented recently is that the case gets administrative closed and then it's just held in perpetuity and it never gets never gets pursued so w y u is actually a little bit more akin to this case than itself and w are you specifically says the six factors and you should consider them but they're not they're really secondary to a primary consideration which is whether the person opposing the administrative closure is  providing a persuasive reason for doing so now think about that in w i they're saying it's not the six factors that are primary but it's this one factor but that one factor is actually very similar to the factors that would be considered under the case law prior to  covarrubias this court said there is no jurisdiction and no meaningful standard well what was the what were the board considering in cases of the ministry of closure back then really only two things they were considering whether the case was opposed whether administrative closure was opposed and whether there was a valid reason for administrative closure right so those are very similar to the standard in fact the wy used energies in less of a meaningful standard they're considering less factors and they're just considering the reasons of the w y u makes clear that certainly in interject that i don't mean to get you off the trail of more important issues well i would like to know your government perspective on the same issue i asked your friend on the other case or our no jurisdiction precedent nearly every reconcilable with it because i was not aware that that standard would contemplate that  intention with some agency decision i am not aware of any higher present in fact i think i can comfortably say there is not a higher president that would overturn dia's kovar rubeus i would note that there is a published decision that it's an additional factor that this court has to consider that is not that the other circuits the two have considered this court have not had to consider there is binding precedent in a case called villages sotto in which this court held that the statutory provision at twelve fifty two g which provides that there is no jurisdiction out of causes or claims arising out of among other things the attorneys general the attorney general's decision to adjudicate cases prevents jurisdiction over motions to reopen to seek prosecutorial discretion now i don't think there should be much of a dispute that with motions there is no dispute that motions to reopen are ordinarily within this course discretion and yet this court has binding precedent your honor that says that under the statute at twelve fifty two g there is no jurisdiction to review motions to reopen when there used to be to seek pros well if the if it's not allowed for a motion to reopen under twelve fifty two g how could it be allowed for administrative closure with the arguments for jurisdiction are significantly weaker so i think this court has to grapple with precedent that other circuits which have found restriction don't have to gra with that's a binding precedent and the binding precedent in villages sort of makes sense in the context of other similar situations where we've seen this for example when applicants apply for the relief of cancellation of removal one of the things that they have to demonstrate is that they would demonstrate exceptional and extremely unusual hardship to a qualifying relative and the courts are all in agreement that that is a discretionary determination by the attorney general and the courts ordinarily the courts do not have ju what aliens were doing in those cases they would often file motions to reopen re attacking the hardship determination and the courts rejected their ability to try and restore jurisdiction that way they say we still don't have jurisdiction over motions to reopen when the underlying problem is something we don't have category so it's not just the fact that heckler against cheney heckler against cheney says that just because we have a number of factors doesn't meant automatically make this judicially manageable standard the courts have to look deeper the the statute even if you didn't have the supreme court's decision heckler even if you threw all the law out outside and you were just considering whether you should have jurisdiction i would hope that just sort as a matter of legal instinct it should feel wrong when a court is asked to interfere in the docket management of another court right it's ordinarily when there are jurisdictional questions judges consider judges oftentimes lean towards jurisdiction because there's a protective protective interests at stake right there they're worried that that if the jurisdiction isn't maintained somebody has rights could be infringed upon there could be an abuse of discretion the courts tend to err on the side of jurisdiction but that protection or interest isn't really relevant or at least is very diminished here because the court is essentially being asked to protect the board an immigration judge from the management of its own docket and in particularly in a situation where it's to seek prosecutorial discretion which the board doesn't even have jurisdiction to review they can't even look at d h s's refusal to this is an instance where you should want to not exercise jurisdiction courts shouldn't be interfering in facts of a take for example when this court considers cases for whether it's to going to hear a case on bond for on bank review right the supreme court doesn't review your decisions to determine whether you consider the factors that are outlined in federal rule of appellate procedure thirty five that's it for standards you're supposed to consider whether creates a circuit conflict whether a group whether it creates whether it's an issue of particular importance but they don't review that because they understand that's your court call to make it's traditionally within your discretion they don't set it back down for you to that you say that you must hear this from bank it's very similar to mister closure nobody has a right to administrative clews closure just like nobody has a right to a non bank hearing right it's the court's call to make and it's the board's own call to make does this make sense for its own docket so the court shouldn't exercise jurisdiction here even if i mean the law i believe supports it but both under the court's precedent and certainly under a heckler against cheney i mean when you read heckler against cheney you could they're talking about an f d a case and an f d a rule but you could substitute administrative closure in for what they're talking about and it fits perfectly i mean listen to what they talk about i mean the agency has to assess whether a violation is occurred the agency from or with the resources are best spent on the violation whether the agency is likely to succeed if it acts whether the particular enforcement action requested best fits the agency's overall policies whether the agency has enough resources to undertake the action that all i mean those are all things that the board is considering it administrat closure in the supreme court and heckler against cheney said there's shouldn't be jurisdiction over that that's the kind of peculiar expertise that is let generally left to the agencies discretion i know it may seem like a daunting task there are four circuits that have found jurisdiction post  agree that it may seem daunting but those decisions are they don't consider heckler versus cheney are all wrong i believe so your honor and let's take a look at the seventh circuit the seventh circuit has an even weaker rationale than the eighth they said well it ministry of closure is basically like a continuance so and we look at continuances so why not look at administrative closure well this case is a textbook example of why they got that wrong petitioners are trying to use administrative closure in this case like a continuance they don't want this ever rescheduled they want this held in perpetuity forever this isn't like a continuance not to mention the fact the continuances are inextricably tied to due process rights for it right you need a continuance because you need time to find an attorney or you need time to gather evidence you need time to basically have an opportunity to fully and fairly present your claim that's not that's not implicated by administrative closure no one has a right to have their case for moved from a docket in perpetuity so i just that's it for time so unless there are another for the questions i'd just like to briefly address a couple of issues that tourney general has raised most notably i think their concerns regarding twelve fifty two g which i just don't think are applicable at all in this case case that they reference is a decision on reopening and this court's prior precedent has found that reopening does implicate twelve fifty two g concerned  because this is related to the agency's pursuing proceedings or instituting proceedings however the tea sienna dresses again at page six ninety four that the twelve fifty two g is not concerns going back to the idea that there is no meaningful standard in of a t c and that's simply not the case i mean the board of immigration appeals has outlined several factors they're the primary factors that are considered by the agency when they're determining whether or not to administrative leave close the case and this court has found that in similar circumstances like in  n and in wy you has definitely given a sufficiently meaningful standard for review and just want to make it clear so if it looks like we've followed what you request here and what you're arguing and we send it back would you make a request for administrat closure at that point a new request would you be seeking prosecutorial discretion i'm trying to figure out what would happen so we're certainly not trying to strong arm the board into somehow granting prosecutorial discretion as i think the attorney general would just what we would be asking for is for the board to articulate the reasons why administrative closure was not granted or whether or articulate why they will grant it i acknowledge your honor that given the change in time so let me backtrack and say it was puzzling to us at the agency that the case was not administratively closed during the timeframe that we were in today unfortunate priorities are different and i understand that if we do return to the board of immigration appeals on this administrative closure request it's probably more unlikely that they will grant administrative closure because you're both this was pros discretion well we both asked for prosecutorial discretion and for administrative closure those are we have knowledge those are two separate things thank you thank you