artist do you know how when you said new regulations right now i want to make sure i understand what you are talking about because it appears you know that there are as of earlier this year this year a new ultra virus usually that argument would say well look at this statute which says sue us fanti means thus and so but is that your argument or tell me why it is it is not just not to defer to is it's not in the act and the attorney general's attempts to create law through regulation is just that it's actually required when you say it's the if that is not in the act  is soo a spine to reopen you know it all other than be the born inside the congress created the board of immigration appeals to decide disputes and immigration proceedings alter it i was thought you were going to tell me there was something in a statute that says sue a sponsor a real openings must be a while but you're not telling me that you're telling me the congress didn't fair that is fair but i'm also seeing that the fact that the attorney general's drastic stripping of that authority in practice that has been common for decades in immigration proceedings essentially is rule making or law mak agree with the analysis that i just mentioned perhaps it's not a problem but so far we have not ruled on and i don't know anybody else's rules on whether the new regulations whatever its validity would be retroactive if it was you have a problem right i would and so would many other people i mean and it also would open the floodgates for the government to be able to reopen motions because the regulations effectively do not apply to they could move to reopen at any time as many times as their wish and for any reason the fact that it applies retroactively to cases that have been moving through the courts or may already be in immigration proceedings as a result of a for you what you would like goes to adopt the reasoning of the ten sure to find that the de minimus activity regulation is over viruses might call you indicated and be done with it is that correct court farewells and here on behalf of the attorney general i'll start with the questions regarding the new regulations and spots where we seem to be focused this morning but this we agree and we agree with mr in a sense been that the regulation really has no impact at this stage of the litigation at this point and we don't think that this court has any ability to reach the question of whether or not those regulations are valid and goes we would apply the regulation that was in force  the time that the original decision was made in this case that's right i mean the question that's presented to this court is whether what the board or did based on in the laws existed at the time was was correct we haven't brought forward to move this motion in this case because you know for a number of reasons both in part it's because the validity of that of those new regulations are still an act of litigation and district courts across the country and there's really just no reason for this court to be to be trying to weigh in on that in a particular situation where if it hasn't been applied in the event that this case is really ended and the board would then have you know the opportunity to decide whether or not so five the regulations to this particular case and if they were to do that there would be an opportunity for the petitioner to file another case another petition for review from that decision with this court and present all these arguments that are now being presented an oral argument here but those those isn't an issue in this case is whether or not the departure bar was properly applied to us to a sponsor a motion to reopen that's a question that's presented before the court and then tell somebody comes forward with a motion asking you not to reach that question because you know the new regulations have have rendered that question moot we think that the if the only issue that six courts should be concerned about is the one that was presented and and trust by the board in this case th a correct reading of the statute under under piece or versus wilkie and that we would by and that these drugs used is the statute that governs is not ambiguous and therefore the ability before was about the new regulations that went into effect in january i thought that's the part that i think that this court really cannot cannot reach here but we have a miss wilson so you're saying that because of the new regulation i mean the new revelation has no bearing here of the cases not moot because of the new regulation is that correct we are not arguing that it's moot at this point and that you one of the reasons is that the regulations still actively being litigated and secondary reason is that those still have to be an application by the agency a determination on how the rest your activity of that of that new regulation will be applied and so until that's done we just can't tell the court with a straight face that that there is no case or controversy here so  i think for that reason the court need not worry at all about these new set of regulations but turning back to the question of the existing regulations we think that we think the board here properly applied its own right it's a precedent to deny the untimely motion reopen which in this case was filed more than twenty years after the petitioners departure from the united states and this case you know traditionally there are two avenues in which you could reopen a closed room will proceeding are closed removal order but here the longstanding regulation cabin to cabin in a way that perhaps it's reopening subsequent to the departure from the united states that the the only issue that was presented here in the briefing to this court and indeed the only issue that was presented to the agency about this this particular regulation was whether or not the application of the departure bar is contrary to this court's existing precedent and i think if the court really focuses and narrows the how big how do we not how do to that agency and i'm not i'm just i'm not quite sure i understand how it would be nor is court's decision in keizer please explain to me how you think we could do that i'm not suggesting that you have to ignore it but i think our st argument is that it really should not be addressed here because it hasn't been raised hasn't been briefs it was i think in our view waived in the end the initial briefing in this case the only arguments that have been made it safely i think by the kicking around in the briefing here and the briefing here the court's really been focused on a different ambiguity the ambiguity about the use of the present tense in the regulation that's very different than the question that the th circuit was addressing with regard to what is the meaning of filing a motion whether or not the sewer spontaneous or whether or not a sewer sponte use of authority is implicated by that reference and a satchel that are in the regulation to the filing of a motion so that's why i think that briefing would be make a certain argument when the law is still there i didn't usually think that people forfeit arguments if a judge comes up with that rather than the  if you come back to at least what i thought part of this was a valve is what is your argument that suicide to be reopening is covered a regulation the talks about a motion to reopen now because i always thought that even though a alien may use the words a motion to reopen s spot to get isn't really a motion it's asking the court the immigration court to act suicide want to and if that's correct then how does your regulation even cover that and we can read the regulation and say perhaps as the th circuit did it just doesn't cover a request for suicide bombs the reopening the of course if we rule that way there are lots of reasons that the exclusively done based on motions practice the courts almost never have resorted to doing that without a record of a motion and so if you look at the history of the way that this regulation started and the way that it's been used party that is right that's the traditional practice in immigration court so if you if you look back to that regulation you asked us to discuss there's a there is a discussion in that regulation regarding the suicide on the use of soon as fontayne motion and immigration court so i think if you are looking at this at this the text of this this regulation with that practice of not understanding that seventy years of use of that statute in mind you'd have to question whether it really is clear on the face of it and i'll tell that was created kaiser that's that's right so i think that your eyes are has told us that we need to you know really focus on whether he is genuinely ambiguous and use all of the tools and then he the clear message to the courts that we really need to you know revisit how we review and you know perhaps give less deference and in the  bit to understand because we're not in that world we're in the world with kaiser and we can't ignore it and so give me your best argument why that term doesn't exist i'm suggesting that this court is dealing with a background where you've already analyzed this issue and given some really good arguments for why it's unclear whether those regulations should apply to individuals filings to respond to a motion so i think think the  argument would be here we have a motion and it was an action that was taken on a motion seeking sue a spontaneous already here the person has no the position or had no opportunity to file a statutory motion seeking reopening so we are dealing in the context of of a motion asking the court to consider whether or not to use that so i think it specially as applied here we would have a have a good argument for why it was properly applied given the given the text the statute but it's also it's also i think the court got it right when it said in land that it's unclear whether the phrase is subject to approval proceedings or st to like what point in time it's referring to whether or not that's at the point of removal whether or not that's at the time the person or the person files the motion to reopen because if you look at the arm and arrows decision the board's decision interpreted in this regulation they make they make a very strong point with respect to the history of the statute pointing out that it has been applied to individuals in this very same posture  removal proceedings are still open there would in fact be nothing to reopen so i think reading the history of that reading the language the way that its way that the present tense language is used and connection with the traditional practice of using motions i just want to make sure i understand because there's two avenues that can be approached one is the you know on the whether the departure bar is that you know is a jurisdictional limited and what we've been talking about on the s reopening and that it was a trip this is what you were addressing in your in your last statements here but we could also focus on the narrow question of whether the partridge applies to through college of this case based on when he departed and if we focus on when he departed i just want to make sure i understand what your argument is so argument is that the departure are here and that all of this this court has previously addressed the departure of regulation and the context of whether or not it limits the authority of  that point so you would this court can't follow lend it predates the agency's decision an arm and bear as which adopted a contrary interpretation of the regulation so i think under brand x you would defer to the board's decision other questions by my coll