gomez versus lynch we have the odd happenstance of no appearance being made by counsel for petitioner so we will invite the attorney general's representative to speak  may please the court john blakeley on behalf of their son and attorney general the united states your honor in our brief we focus heavily on the standard of review to apply in these circumstances but i think perhaps the most important point made in there is that we have to understand what it is we're removal proceedings in addition to that there are quite a few cases that come before the court that are withholding only which proceedings which are either coming from reinstatement order or from an final administrative order but those proceedings  have have they went through the first part of the screen process here and they found that there was a reason a fear of persecution and so there are many of those cases that this court saying that's not we're talking about today we're talking about a review of the actual screening process so we have to ask ourselves well what what else does this court review that's what else is like this screening process but what it's most like is it is a credible fear proceedings and that's something that by statute congress has has said this court does not have jurisdiction true view so that doesn't help a lot except indicate that congress is comfortable in some circumstances with this sort of screen process not having review in this court the next closest thing might perhaps be a motion to reopen a motion to reopen it views by areas reviewed by this court for abus discretion but what's interesting in this context is that and reinstatement proceedings congress has stated specifically that a motion to reopen is not available so i think that would make it so that wouldn't be appropriate to review this for abuse of discretion so we had to look elsewhere because there's nothing clearly defined i would say how how this court should review and so i think probably the best example is provided in mason v brooks a case from from this circuit that addressed a prole decision where an alien outside the united states wanted to be paroled in so that he could apply for a benefit very similar to what we're doing in reinstating proceedings he's saying that he has a reasonable fear and he is deserving of a full blown regulation or internal guidelines for how path decision is made not that i'm aware of your honor because when i looked at the regulations for the reinstatement order in the the reasonable  asking you to look at what the actual process is normally when you're talking about withholding a removal in a full fledge hearing you've got a hearing that where where evidence is submitted where it starts with direct testimony then cross seems pretty different from a parole determination the parallel is not exact and that's the problem that we have here but i think the the other thing that the other way that this is like a parole is this that that there's a balance of factors here in the reinstatement statute congress has said that we intend this individual to me be removed very quickly and they should not be available should not have available to them any forms of relief and then on the other side of the balance we have our obligations under the convention against torture which is that we not remove somebody who we expect as a as a probability that they will be tortured or in the context of just withholding a room on of the i know that they will be persecuted but that's a clear probability standard and so we have to balance these two factors and the balance results in a process that's that's a much shorter process than the full blown withholding of the removal proceedings if  were to review this for substantial evidence the same way that you do review the decision on withholding of removal and then that that that in effect provides the same sort of proceedings that they would have had if they went  i mean frankly i could understand congress saying we don't have any authority here i'm not saying i advocate that but i can understand the logic i mean you've noticed noted areas where we don't but if it's going to come here anyway i'm not sure what difference the lesser standard of review would make we still have the whole review process is going to take the same amount of time it may be that that much more deference has to be given to the agencies judgment but i don't see how it makes the process any more efficient well it's going to require more at the lower levels if this if there's agent was going to be reviewed for substantial evidence that then that that might make the asylum officer feel that they have to they have to collect more evidence and then they have to be put together a decision that's far more complex where the where this is a screening mechanism the only decision that's been made is is whether there's a reasonable possibility that the that they would be persecuted and so what we're asking this court to do is just say it has the asylum officer with the agreement of the immigration judge stated a reason that facially legitimate a bona fide and that in that you honor the intent of congress from the reinstatement statute to move this process along i think it's also worth noting that in that that this reasonable fear proceeding applies both for orders of reinstatement removal like this case and also to final administrative of removal applies to both of those in the in the statute for final administrative removal orders that congress states specifically this needs to be done in fourteen days and that that the really any review could be s within fourteen days and then that and then that's it congress wanted to move it along quickly they didn't provide that same justification in there are the same time period fourteen days in the reinstatement statute in said they said that that that the think this case is an example of a facially legitimate reason and then a facially illegitimate reason would would be where where the adjudicator would say there's there's no evidence here there isn't if there's even no argument that they were persecuted on if it had back to ground and then if you look at the evidence you can see that right on its face they've alleged persecution on account of membership in a particular social group so in in  case and that the process would require more because of that gross miscarriage of justice so i think we have the same sort of situation here where if you if you look to the asylum officer determination and you saw that there was a gross miscarriage of justice there is something clearly safely illegitimate wasn't didn't have jurisdiction to look to the order below but because anyway but we and that's correct ron and that's because of the gross miscarriage of justice which was identified by the district court decision in the criminal case and  e and we didn't well the government doesn't have an issue with that right now in fact if there was a parallel in this case in which it was clear that there would be a gross miscarriage of justice if the immigration judge denied a further hearing because there's no reason to believe that they would that they didn't even claim that they were persecuted on a on account protected ground but they say that clearly stated that the fact that would be a miscarriage of justice that facially legitimate it's not bonafi e another example would be bad faith and i think that you remember that was in the bustamante case where they where there they examined to determine if there was bad faith and found that there wasn't so bad faith would be it would be another grounds look below the bottom line though is with the facial legitimate bona fide standard this court can assure that there's no there's no gross miscarriage of justice and i say this my my time is out unless you have any more questions and we thank you for your appearance and helpful comments the case just argued is submitted