good morning and welcome to the ninth circuit a little housekeeping before we began to submitted cases ramn vs bar and by b versus a bank of america both of those are submitted we've got four argued cases the first of which is  it leaves the court a name is nicholas marquis i represent what he says look i will see you a couple times yes you do have me a couple times and we saw counsel for the government twice yesterday and today so and reconsiderations that were filed and after the b i had dismissed the initial appeal regarding cancellation of removal and two thousand and thirteen october  jurisdiction to review your legal claims challenging that decision i believe you do you know under the initial motion to reopen and terminate that was filed was denied by the be counsel then filed a re fifteen decision at three there the court or the board did address the issue of the voluntary departure and the question was whether that was extended or not the problem we have with the  board or of immigration appeals is that there is no voluntary departure by automatic operation of when you file a motion to reopen that terminated we don't have to demonstrate it's by statute regulation that you are says should you file a motion to reopen your voluntary departure is bake aided withdrawn or  him that you submitted in support of your motion to reconsider appears to be an issue january at twenty fifteen which was months after both the original voluntary departure deadline and even after the deadline for the motion to reopen so i guess how does this document support your claim that the local d h s s office extended the voluntary departure period before rodriguez vyas filed his first motion to reopen well and that's what you thought you could get more complicated that gets more complicated that's the problem now the fact that ice allowed them to buy the twenty that is verification that he's checking in and counsel below argued that it was an extension i still maintain that the fact that you filed the motion to reopen back in we get around that there's a per individual going to the government checking in seems to me very faithfully checking in and getting extensions i'm going to put your quotes around extensions for my because i fully appreciate the government's argument that that  their position i think this is a legal in possibility nevertheless here we are with this individual getting extensions extensions extension and since he filed these you know the handwritten the handwritten extensions to twenty one and twenty two the motion i don't see any indication that the immigration court looked at those or considered those are answer those at all if there's a statement these aren't what they purport to be i can't tell if they were even where's the e file the o j seems to be the attorneys come to court they haven't seen a file because sort of a client file but without it well so so that's first question sort of who looks at that and when the government represents that departure orders entered consistently with it i have concerns and this is a sort of a prime example these are these are handwritten note i make on extensions handwritten extensions i i would imagine but i'm just making this up that in this day and age these are entered into a computer somewhere and it d h s would know about that but it doesn't look to me like that's happening and so i'm left with with with the record i can't make heads or tails of this record oh i and i don't know that i can answer your question i can give you some background information take it and then i i will welcome an explanation from the government as well so as the court is where we have yo are the immigration judge and the court who addresses issues then you have right hand are doing and nobody tells the judge in the middle what's going on so you may have ice granting these extensions and we may submit it to the court but that information would go to an a file if i was going on did it go to just passed a file first of all ok are you are you i'm saying they exist and i think the twenty in those documents do exist well exist i'm looking at them my question is when there's a hand this handwritten are yes yes yes they are in both so they would have been entered into the a file because the officer who is enforcing the voluntary departure has the a file in his possession well should anyway right you should for ok secondly because it was filed as a document that was attached to the motion to reopen and reconsider the motion to reconsider it would be part of the administrative record it do you mean twenty twenty one  yes what that was yes it would be included it is all three documents yes i thank you ok that's so i have a question though but if both the statute and the regulations say that a total period of voluntary departure including any extensions cannot exceed sixty days but rodriguez claimed that the local d h s s extended his voluntary departure period to february twenty fifth which is around six months beyond the original authority something that i don't like if it's fair i understand that and i don't know that i have any legal authority other than it's within their discretion now the government will maintain that no it's one hundred twenty days and that's what the regulations  you can extend it but they did extend it so therefore they waived it by their own extension ok then when i know where i'm sure that our presiding judge will give me a little time for rebuttal if we're using up all your time but generally we do not have jurisdiction to review a decision by the agency not to reopen so a sponsor ok so what is your strongest argument that we have jurisdiction in this case in this case i would say that it was an abuse of discretion that would get me there you know i know the government had submitted twenty eight j letter words at the court did have jurisdiction unless it was a factual matter here we're not saying it's a factual matter and therefore we because that was the only place that the that the board addressed the merits the only to the extent that he's relying on reconsideration as a hook the reason the motion to reconsider was the night solely on procedural grounds which was that he didn't submit any overlooked legal or factual error and that was the basis for the board reconsideration that is insufficient to get to the substance of the voluntary departure issue but since the court does have questions i'm going to address them first of all they are not jail he was taken into custody and so during the custody while he was detained in immigration custody apparently he was released on bond or cognizance it's not clear but he was in the tension so so these are not extensions these periodic check ins are part of the conditions of supervision that was part of his release when he was released from immigration detention in two thousand and ten and the eye to thirteen this is that are four thirty six indicates that he detained and he was in immigration custody before he was placed into immigration proceedings that's why he came he had the periodic check ins with us or you know that from there something i missed this record whe was january twenty fifteen which is the date of the last report on the handwritten twenty two that's going to piggyback on this question so what do we do with that so again this is part of the maybe it would be helpful so i went through and i'm going on this knock him out is voluntary departure heading on it is i meant that your honor but if you look at the first check box is about the sentence that you read the second check box is your request for an extension of time to depart lawyer but i really have a document that is headed voluntary departure and it says that i'm supposed to leave on a certain date at my own expense which is how voluntary departure works on a certain day i'm supposed to believe that i'm supposed to say i should have gone a long time given thirty days to voluntarily depart so the voluntary departure date expired on july twelfth twenty fourteen and this is a government form filled out by the government saying you have until this date to deport you had a volunteer departure and now the government says sorry we didn't mean that you might have misread that if i'd been to his position i would have misread it too or maybe in my own position i would have misread it just to be maybe i'm not misreading i'm just reading it that i have until as it says period you're required to depart from the united states on a before february the twenty fifteenth at your expense period which boxes that would have been tacked the one underneath that entire sentence a second box that says your request for extension of time to depart from the was now current that was august eighteenth two thousand and fourteen so the bond her departure had already expired by the time that she filed the motion to reopen the petition or filed the motion to reopen so petition counsel's argument today that the filing of the motion to reopen terminated the voluntary departure is really beside the point that the voluntary departure period had already expired there was nothing to terminate and so when the board and then of course when that happened d h has filed has its opposition to the motion to reopen saying that no you can't get you can't we open on the basis of eligibility for adjustment because you over stage a voluntary departure period therefore you're an eligible so cancelling petition were both on notice of d h s s position the because he did not leave within the thirty days of voluntary departure that the board had reinstated he was not eligible for vote for adjustment of status under section two forty five he would have to go abroad and immigrate to overseas consular it may as a discretionary matter but it with respect to the visa and all of the the non discretionary determinations for adjustment he would that would all be dependent first of all on his wife being approved for adjustment first of all and that's not even clear from the record if she is she was still applying for adjustment she had the visa available but her approval wasn't even in the record yet and he was applying as a derivative beneficiary of her adjustment application is what i think this is  twenty two would have been entered into an electronic file i understand that it would be ok and then and that's i think of that as a client file that's initially get to people like you who come to court but that when you get is an administrative record that's correct and twenty is not what it purports to be that might not be an exact quote i mean there's three of us up here trying to make sense of this and i'm trying to figure out what your best answers about why petitioner would have known what this that this is something other than what it purports to be because as i read and it's just got to read into the record sounds like an extension and that's part of why i'm i'm putting this into context because counsel he was represented by counsel not not present counsel but a different turny below and throughout this she was on notice as well given d h is opposition to her motion to reopen so you asked if he would have known because his lawyer would have known that's correct ok so i'm assuming reopening you argue that this court may not review the regard kid the meaning of the form i too can and d h s s authority and actions in this case do we have jurisdiction to review these determinations for legal error you would your honor except that i think in this case the board of immigration appeals correctly stated the legal basis it agreed with petitioner that the h s does have the authority to extend voluntary departure but it is limited by the statutory amendments statutory amendments so in this case because it was an and your and i j granted voluntary departure post decision the maximum voluntary departure period the petitioner could have gotten was sixty days he was given thirty so any extension would have been limited to another thirty days d h does have the authority to extend to grant voluntary departure periods up to one hundred twenty days if it is a pretty decision voluntary departure that's not at play here because everything here happened post decision when the immigration judge granted voluntary departure at the end of the merits hearing so can you tell from this record exactly what the reason was sold in the context of fun to according to the form d h s s simply granting the respondent the opportunity to depart of his own expenses on on or before february eighth two thousand and fifteen because again the voluntary departure period had already expired and it couldn't be granted well it doesn't sort of unwind all of this in that and so it's hard to know whether relied on if if if we felt that it was hard to ascertain did it rely on a you know what was that merely afforded the respondent petitioner an opportunity to depart without having to endure custodial removal so that was d h s's own interpretation of its document and so the board of immigration appeals s s position as to how this document should be read and as a factual matter d h s s this is not an extension this is simply because because the motion as pardon me the voluntary departure departure period had already expired and couldn't be extended because january twenty fifth february twenty fifteen is well beyond the sixty days that he could have that he could have legally been granted an extension of voluntary departure so when the when the board deny the sewer sponte reopening on this basis the board was denying i'm assuming that opposition as well as its own reading of this document that said you're assuming but it could have been clear or it could have been your honor but i think there is sufficient indication in the record for the court to to see the board's reasoning it doesn't have to necessarily spell it all out especially since it was a sewer sponte denial but i believe that in this case the board the law right said the d h as does have the the authority to extend voluntary departure so that part of that under bunia the court wouldn't have jurisdiction to review because the board applied the correct legal background there was no legal error for the court to review under bunny and according to petitioners own brief to this court whether or not his voluntary departure period was extended and whether or not this is an extension is a factual matter and he has asked the court to remain for a factual hearing all those indications to me lead to the conclusion that there there is no fact that the disagreement here is a fact based disagreement at the court can't reach even with for the two minutes on the clock please but we took the government well over we'll give you a chance to see what you need to say it will be quicker the problem i see in this court is we have a record that is hard to follow and we cannot determine from this record what did occur we have a voluntary departure form an extension for that was used to i to ten in addition to that and that's  zero which is an order of supervision that ice does and they use these forms on it so the question is he was given a bone terry departure form and the government is saying well this was just allowing him to sta and this reporting for but then that would be an order supervision again we don't have a proper record which you have is a voluntary departure extension form that was used and checked and i think the court is correct doesn't that mislead the response or the petitioner and i think it would what they say and again these are facts that i know because i've been doing it for twenty years but i can't add those facts and i can only say generally speaking when you are out on supervision and an order like this it's an order of supervision from ice and you do check in every month just like what was attached to the superdome do you know exactly asking this court i'm asking the court t i determine if it was an extension or not an extension was was you know what was an extension of what we have here and they are twenty when i think they decided that i think they said this is not an extension this is a permission to depart voluntarily on such and such a date and i would say if that's the case and it's sort of in order to supervise that that it's not and should have been i'm sorry i didn't hear you use or should have been an order of supervision you saying that we should tell them that they're wrong i mean i can't really ask them would you have a look and tell us what it means because they've already had a look and he told us what it means right but i understand they are against my frustration with this case as we don't have an adequate record to say what it means we don't have the ice officer who was conducting the reviews to say this is an extension of all this so what is is this more than that but they did say what it meant and you're disagreeing with it and so yes if we don't think that they were wrong then what how do we you know i said i mean i know like what you're saying is basically you want them to say that he didn't violate and but i don't know how do you get it you know other than you know i don't know how you get to where you want to go in the posture that you are you know other than just say this is i don't like what happened and you guys have to somehow figure out a way to make it right well i think that has to give more than a conclusionary statement that it is an extension and here you want to be man for reconsideration here and the legal mistake is that they how they classified this is not a voluntary departure extension is i don't know how they did that  whether they apply the law to it whether they actually looked at that's what i'm saying is all they say is it's not about her departure extension so that's why i come back to you seem to object they've given a legal conclusion without a reason for it without explanation this is about as much as we ever get and i concur with that and you're saying well they're wrong or we should remain because we want to more extensive explanation yes due process requires with at least know why even in these well if we thought that they were right and i asked them to give a more detailed explanation of why they were right th because what law are they were lying upon oh i didn't ask well why are they wrong because the form says it's voluntary departure there's nothing that contradicts that in the record at which the government says it's it's a verification of departure but they're allowing him to stay and check in and i'm saying that may be true it's an order then it would be in order supervision so why would you grant or file the notice  testing the legal effect of this or whether they were fairly on notice of this of the fact that he would have not been granted voluntary departure you could argue that they may have not have been on notice of it it's something that's done between the ice officer and the respondent and you know i think it matters for purposes of every man about what you're asking us to ask them to take another i would say they didn't receive notice until they got these documents