the reinstatement regulations are ultra vires to the statute and reinstatement should occur before an immigration judge and an immigration court hearing we submit that the statutory language the relevant statutory language is clear and unambiguous there are two relevant statutory provisions section two thirty five a one which provides that a person who is in the united states who has not been admitted shall be deemed for purposes of this application was initially denied there's evidence of that in the administrative record after that was denied mr morales and his wife filed we filed the these a petition and that he's a petition has now been approved so the current status of the visa petition that the so called i one thirty form is that it has been approved so connection with his application for just in the status he would be eligible to apply for a waiver which under the paris gonzalez case so what the statute allows him to to it's not been briefed as far as i know that's not an issue in this case the issue for consideration is whether or not the proceedings here should occur in front of an immigration court in front of an immigration judge under section two forty sole and exclusive procedure for determining whether a person can be admitted into the united states is a hearing in front of an immigration judge the statute those two provisions are are clear and unambiguous to apply that it applies to people for whom three factual predicates are established that the person was previously under an order of removal i second that the person was actually we moved under that order of removal departed from united states and in that order of removal and third we turn to the united states unlawfully so those if those three factual predicates apply to an individual then that person is subject to reinstatement now in this case in this case the ice i should indicate maybe first of all that the the allegations made in the notice of reinstatement are and the immigration service does not contest this they're in correct and they're not reopen will not be considered in fact in arriola the exactly that happened the person was to deported and came back to the united states and had an issue about the validity of that prior order the person filed a motion to reopen and the immigration judge said that he had no jurisdiction to consider that motion to reopen so the motion to reopen is not really a viable or workable  not well if there does have to be a consideration of the validity of that prior order of removal and i guess the question is well where or how does that occur   the reinstatement process is predicated on the assumption that there has been one full and fair hearing but there has to as the court in our real recognize there has to be some way to is twofold first of all though the regulations provides that a person who is departed from the united states cannot refile a motion to reopen cannot file a motion to reopen in the air and then in the aureola case as issued by an immigration judge in the person is deported and back in the united states and then he files a motion to reopen to the immigration judge again presumably and then there would be i suppose or earth if there were relevant factual disputes there would be a hearing in front of the immigration judge to resolve not appropriate the question then is whether a person who is apprehended by an immigration officer and subject reinstatement is is to file a motion to reopen or whether the immigration officer ought to bring that person in front of an country if you want to come back and you can log on the door like millions of people do every year and ask permission to come in and the fact that you master sneak in a second crime doesn't buy anything you don't get th this this court has not ruled on that there are regulations that would that say that a person who has departed cannot file a motion to reopen and this court noted in the arreola case that the applicant there the person being reinstated had filed a motion to reopen and the immigration judge denied them for lack of jurisdiction so but but this court has not addressed better ruled on that issue that's correct but in those cases and any other issues such as for example the i forty five application the waiver application or whether the person has lawfully we entered are made by an immigration officer and arguing about why i know it unless you she never received not well under under our argument under our interpretation of the statute those issues would be lost in front of an immigration judge on the other hand if we adopt the suggestion that's been made that there should be a motion to reopen then the the yes the person there would be an exclusion hearing or removal where a person shows up at the border and there's some dispute about whether the person is really entitle to be admitted in that issue was resolved and in front of an immigration immigration judge ought to be used rather than and enforcement officer for the decision of about reinstatement is that the record that's created for judicial review is entirely inadequate when it's created by the enforcement officer  that's reflected in this particular case there are factual disputes about whether or not the prior order of removal was valid or not mr morality you know wants to claim that it wants to raise his this defense that he was not properly given an order of the original order of deportation the notice of the order of the deportation proceedings and yet the record is is entirely in adequate to to address that  that that claim there's if there's a hearing in front of an immigration judge an immigration judge is familiar with the process of creating a record it person would be given an opportunity to review the prior order in the prior deportation file we factual predicates one of those predicates is that the person be part of the united states under in order to remove or if that order of if that order of removal of the prior order of removal was defective was not served properly then that it's not a valid over order of please the court jonathan cohen representing the respondent your honour's the only serious issue in this case is the statutory question the constitutional issues can be easily resolved for among other reasons petitioners failure to show prejudice for the same reasons that this hardship to those arguments in the case accordingly if it pleases the court will first turn to the statutory issues and then to the constitutional issues after that asked for the statutory question the issue is whether the regulations various there shortly or not for several reasons the first reason is the statute is on in the us that the relevant decision maker is the attorney general as judged by the pointed out not an immigration judge congress was clear when it wanted to require an immigration judge and you had used the words immigration judge it did so in section two forty it also used those words in sections two thirty five and two thirty eight by contrast in two forty one hundred five the relevant statute issue in this case congress did not say immigration judge instead congress said the attorney general and the attorney general of course has many employees tens of thousands of employees who are not immigration judges and he can january fifteenth two thousand and three a month and a half before d h just was created so none of those issues are present in this case this is a purely d o j case and under twenty eight u s c five ten the general delegation provision the documentary evidence that he chooses and as he can present his evidence and he did so in this case on page six he made a statement there are questions and answers and if you look at the record is clear that in this case none of the three factual  turned dispute sure mr morale is disputed some dates but the essential factual predicates are not in dispute he is an alien who was ordered removed he laughed and he came back it doesn't even matter his departure was voluntary because the reinstatement statute covers the challenging the underlying order he was allowed to do that under this court's decision areola because that case was pending on the anatomy of the real i d act may eleventh two thousand and five that case should have been and should be transferred to this court and then this court can review the underlying order there's several reasons of why that underlying order should not be disturbed which are more than happy to get into those issues really aren't present in this case i do know however that is  things then he can challenge the underlying order so instead of making a legal reentry if you know if the door and says hey look you know i didn't get a chance before reopen it he can do that in the borders recognized it through it's decisions matter malone for instance if there's a gross miscarriage of justice they can reconsider that original order so we had an option to do that from abroad even in this case your honor but of course in this case it's not a hypothetical in that situation he can get a visa in the original order with the irrelevant and that situation you would not be challenging the order but you'd be getting something which would work around the or because if you was not if i may your honor i want to turn to the pardon the court has concerns about this situation where the alien core peers to have concerns but the scenario where the alien has no notice of his removal order no notice he's going to be removed and it's picked up in the dead of night and it's just taken away i assure you that once you get the district court case transferred to you you'll see that in the western district of washington and should've been transferred on may eleventh two thousand and five the same true a any for petitioners here today is on that case the government feels horrible we did not recognize the issue is not case first if we that two points your honor first of all the alien does have an opportunity during the restatement proceedings to develop the factual record he can make a statement he can submit any documentary evidence and second as this court held in gallery alvarez in the decision  judge thomas joined by judges three of them frank are saying if need be this corking remains the district court under twenty three forty seven three that's the court in that case and if need be the courts do it it shouldn't do so in this case because there aren't any suggest the court shouldn't address that second question until resolved the predicate question of the validity of the underlying order but the court could do that address both issues take care of the original order and to reinstate the quest creation judges didn't do so here the secretary general petitioner makes the argument that he falls within two forty three but he does and two forty three is the exclusivity provision that applies only to circumstances number honor this is a case that arises before the creation of th statutes were ambiguous then under first several reasons the ambiguity should result in the government's favor first of course there's chevron deference second of all there's a legislative history were congress made clear it wanted to eradicate the late reduce us the regulations too and also there's the policy behind it but this way no one disputes that we don't need to have an immigration judge to execute removal order the first time it's being executed this case involves the second execution and it makes no sense to require immigration judge the second time is executed if there's no immigration judge required the first time the only difference is the intervening criminal act no i've used requires a first time no i just re the district court shall according to really want to sixty shall transfer that case to this court should have done so already but it shall transfer at that case then it comes to this court and pursuant to want to sixty of real id that just last week there was a miscommunication we feel horrible about it we learned about the substance the content of that a b s in preparation for this argument i'm sure mr powell feels horrible as well he's the attorney in both those cases it was matched up and we do feel horrible about it perhaps your honor ok thank you thank you very much involved in that he views petition on some of those properly stay in the heaviest court and the one the one that was raised this was filed course before the real i d act a claim challenging the prior order of reinstatement that can be transferred here to to the ninth circuit but because of this right right right then under one that arrives here under section two forty two v the court reviews that decision only on the basis of the administrative records created by the agency or the court has the record that that's relevant for purposes of the plame now the  partly with the real i d act but also particularly with respect to section two forty two section two forty two b for a which requires that the court decides the petition soley on the administrative record on which the order of removal is based so that would seem to preclude the transfer under section twenty three forty seven b because any evidence that the district court received where does that actually show so what could this court we do to do it would remain in and back to well either of the enforcement officer or we submit to the immigration judge where the record for can be created it's our