of the u s code does not authorize the department homeland security to issue removal orders or enact the regulation implementing that section the second argument is that petitioners not subject to removal under that section of law because he was not convicted of an agg removal was fine when initially enacted because the authority of the attorney general in immigration matters when to view immigration and nationality service and i asked in two thousand and three with the creation of the department of homeland commissioner's torture the fact that he indicated his desire to contest the finding that his removal essentially is a response he is not making any arguments now that he could have raised at that time for one thing because the very fact that he was in these types of proceedings deprive him of the opportunity to make any other argument further your honor the petitioner at the time was an represented by counsel and the legal challenge that he is making to the determination of the part of homeland security is something that someone in his position could not be expected to or to q late as they were pro se detained and within a ten day period provided so by indicating that he wished to contest the charge that essentially is his answers he's saying no i am not removable under the section i've not been convicted of this offense and at that junction is exactly why we see the importance of an immigration judge not an immigration officer being responsible for issuing removal orders under the section of law because it is a complicated matter and that was typically all falling under the authority of the attorney general was not a problem but now we got that authority over to the h s and we see in other sections of the code where similar things that might have happened in expedited removal context for example on section twelve twenty five for encounters at the border the statute expressly authorizes immigration officers to issue removal orders but we don't have any such corresponding delegation within twelve twenty eight so the default should be that that already remains with the attorney general as it does in traditionally the authority to issue removal orders has always been with immigration judges and even with be an accident of the homeland security at than a transfer of most immigration related authority to the department of homeland security we still have section an eleven o three a one of title eight which reserved to the attorney general those authority over those matters that have traditionally been within the purview of immigration judges in the issuance of removal orders is one such area this case presents a big reason why that authority should remain with immigration judges who conduct other types of proceedings remotely for individuals who are detained they do tele video for people that are incarcerated in state prisons where the immigration judge can address them issues and forego their f process so the system is in place to do this and this is what should happen an immigration judge would have looked at this conviction and likely taken a different approach than the immigration officer who would do decatur this case did which actually what the supreme court has made very clear applies to the termination of i go to felonies in the immigration context in this case the section of law that petitioner was convicted of is seven twenty i o c s five thirty one four which refers to obstruction of justice as to corresponding aggravated felony but it criminalizes action taken to prevent the apprehension of or obstruct the prosecution or defense of any purpose of any person which is a pretty general set of things that you can do to fall under that we have to look at whether that state statute corresponds categorically to the offense of obstruction just as it's contemplated in the aggravated felony provision of the immigration law the problem is that that part of the immigration law is quite vague term obstruction of justice or rather relating to obstruction of justice is not elsewhere defined so then we turn to the authority from the board of immigration appeals which has taken a crack at this and has essentially given us some guidelines on what this should mean the problem here is that with this particular offense the board's precedent on the matter does not really give us any guidance  is evidence of their side that they do not need evidence of a proceeding to be going on at the time that they are proceeding be interfered with what they said is that was necessary is only interference with the process of justice but they do not define what this process of justice is so in that case at the ninth circuit well as well as the yard of the lynch the united circuit essentially said to the board well you're giving us this idea of a process of justice that you don't define and you tell us that there doesn't actually have to be a proceeding in place at the time for the offense to be obstruction of justice so we still don't know what obstruction of justice is that's never been cleared up and under the categorical approach because the illinois statute covers such a broad range of conduct it cannot be shown illinois statute is quite broad a traffic stop doesn't have to be lawful or doesn't have to be directed at the driver pretty much any any instance in which a person of structure an identity for any reason without regard to whether there is an underlying investigation or prosecution falls under i don't wish that you and that's just not correct to lump every violation of that into an irish felony relating to obstruction of justice this is consistent with what the ninth circuit held in the arguments we made it did not address the delegation argument and they also did not address the fact that all but section two hundred twenty five does contain an express delegation to immigration officers which is not on the top twenty  on behalf of the tourney general after providing petitioner an opportunity to respond to the nose of intent which petitioner did not respond to detest properly determined that his conviction for obstruction of justice was a crime relating to obstruction of justice so your position is that checkbox is meaningless you didn't check d h as a r twenty four he did not check the box part of petitioners the problem with  made for the first time at all argument is that it's factually incorrect he did not check the box he refused to acknowledge the receipt of the notice of intent to issue the order at all he did request withholding that would have impacted this case there was an ministry of remedy as of right and he failed to take advantage of it again for the first time to come to this court and says well i'm an alien i'm an educated how am i supposed to know you chose to have one he also would love to have an attorney for the immigration judge when he did request withholding removal he also chose not to have an attorney there he simply chose not to veil him self all the opportunity to respond that does not mean he did not have the opportunity he had it he did not take advantage of it he argued that the statute was they if the statute isn't clear regarding what constitutes a crime relating to obstruction of justice then how can lawyers adequately advise their clients regarding the immigration implications of a plea bargain they can't because it does not require that immigration lawyers know exactly the nature of what the possible consequences of that conviction may be part of that the ninth circuit's decision essentially which basically is the entirety of the fishes argument is basically driven by this concern except what we have to look at there are two separate issues ambiguity in vegas and obviously to lay person semantically they sound the same thing the statute is ambiguous congress is allowed to create ambiguous statutes allow the tourney general and her delegates to explain that that's part of the house that statutes become explained in this context so it's ambiguous the court has to defer or should defer to the is fair notice the difficulty of those fair notice in this context is very different and fairness in the criminal context congress may and has taken the past action a completed action that's how it came into the d h s s attention that's not currently a basis to remove an ailing if congress were to choose to change the law and say we're going to say any do you i will make a remove certain exactly what's going to be the consequence of the conviction so all the at turn to criminal attorney must do is say well this might have immigration consequences so the ninth circuit's vagueness concerns are basically based on its misunderstanding of the deal so when we look beyond the night when we look at the ninth circuit's analysis of fales really take that into account know i just want to ask because of can you clarify what arguments you believe are not appropriately before us because of the petitioners failure to file a response to the notice all of them all of them and if we hearing he could have asked the h s for two forty removal hearing all this time while he was detained could have been avoided had he asked for that but he did not do that otherwise petitioned arguments on the d don't think your honour's are just a couple of things on rebuttal first regarding be a checkbox issue where they are twenty four i think that the confusion is about what box was checked it wasn't there's a box checked that says i wish to contest and order requests withholding of removal after that there is a separate section with a box for somebody to check if they wish to contest there to portability because and then it lists for specific grounds none of which apply in this case there isn't one that says this is not an aggravated felony there isn't one that says this is an unfair process that i wish to challenge so that's just simply not an option again for across a detained individual also regarding forensic scientists the difference with that case is that the petition saw a review of the denial of a u v from citizenship and immigration services not a challenge to the actual far as the actual final administered removal order this case is about the final administrator in order so by checking the box and continue expressing to the wish to contest the charge that satisfies that