right to have a motion to reopen heard on the merits let me go slowly counsel b i a did not decide based on the departure right that that isn't correct we if you go to the last line of ira order it states we find no basis to disturb the immigration judge's decision and the immigration judge's decision was it was jurisdictional and it was stated that she did not have jurisdiction to hear the motion to reopen paralysed with outside the united states when she filed it if that's how we read board have gone through the other reasons for denying the petition  so the other reason they're just additional considerations that are set forward and actually been are not even relevant to the motion to reopen because if you look at the first consideration that was put forth by the b i a it states that miss garcia p z because her motion it was an immigration judge's discretion to tie her motion for a telephonic hearing we agree we agree that she didn't have to grant the motion for telephonic hearing that's not what this case is and that's what stated the motion to reopen was on the basis that the immigration judge abused her discretion and in denying a telephonic hearing that's not what we're saying here we're saying that mr garcia paris missed her removal proceedings due to exceptional circumstances which is a basis for decision of an order for removal under twelve twenty nine eight because her failure to appear was due to exceptional circumstances and that has never been heard on the merits because the immigration judge blocked it with the departure bar so this reasoning regarding the telephonic hearing is not even a pleasurable so then if we go to the second reasoning that the state it was that mr garcia paris was not physically present in the united states and so she was not eligible for asylum relief and here they cite to that may be mayor and i have a conversation with the other side about this that may be insufficient reasoning that may be wrong what that what the be said but to get back to judge kelly and judge ben's questions why isn't that the holding we were viewing why do we have to get to the departure bar it seems to me like there's two reasons you may say that both of the reasons are legally insufficient but why aren't those the reasons we're reviewing rather than departure bar because in order because clearly there is no factual determination is made in this case and so this court house rude review the b i e for abuse of discretion but it's hard to review a lower crime or use of discretion when the court never exercise discretion so there's been no factual findings so  determination regarding exceptional circumstances there would have to be authority for the court of the b r d to hear exceptional circumstances and right now we're stating that based on the departure bar they don't have authority because paris filed her motion when she was outside  didn't deal with the post departure bar and we said look we're going to send it back to the and they may go ahead and do that departure bar reasoning but because it's not presented for us we're not going to deal with it here why should we take the a plame approach here and what's the significance if any of that particular decision so in that case it was sent back down to see whether there was trolling issues on whether she was timely filed a motion to reopen but here it's a little bit different because any basis to authority to hear it and right now on the immigration judge in the bay are stating that they don't have authority and so just just remind it on that issue alone would be a waste of judicial resources and ineffective because we'd be right back up here on the same issue not if you want of something else right would be the waste of judicial resources if we were correct i guess if we want to thing else but the issue with our motion to reopen has never been heard there's a statutory right to file a motion to reopen and her reason for not appearing that failure to appear was because of exceptional circumstances and to never be able to get there and never have it heard on the basis we're not talking about the underlying asylum hearing claim we're talking about her failure for  sent it back what do you think would happen with the board be able to address that issue in the first instance since the j did we would have to go back to the immigration court sending it back and they still think that they don't have jurisdiction would that issue be revisited at any point in the lower in the immigration courts do you think the poster part of our issue yes yes so i believe well i think that the board has stated in fact that they won't disrupt the immigration judges jurisdictional decision and so i guess the only basis for our motion to reopen today and the only basis for the v a to hear it is on the motion to reopen so they would have to have authority to hear the motion to reopen and so i guess if we sent it back down to the b i a the b i a could state i guess that they conceded they had jurisdiction and would grant would look at exceptional circumstances but i think what will happen is will be remanded in the be able to state that there's the departure of our movie right back up council don't you think given the one page order they did not mention in the post departure and there are two circuits as i miss my clerk says that haven't ruled on that is the fact that they're really not getting into the factual determination because getting into the factual determinations would be on the basis of a motion to reopen so they're looking for other reasons and just not addressing the issue before them but you disagree basis of i guess the first day so here if it's reminded because these two issues that it sets forth the two other considerations are clearly just not anywhere relevant to this pa motion to reopen i guess what there's been no other grounds for them to not decide the exceptional circumstances issue i guess nothing i guess is unclear what the b i am going to say but the thing is they don't have they're saying that they don't have the authority and they adopted the immigration judge or jurisdictional issue and as you've already stated that almost every other circuit has in palleted the departure bar beside the circuit on two lines of reasoning to lines of reasoning that one of the plain language and the other the impermissible construction of agency jurisdiction and with the plain language of the statute the exceptions state that me the plain language of the statute state that an alien may file a motion to reopen and there's nowhere in their word so the geographic limitation and presumably when congress enacted the right to file a motion to reopen they were aware of the post departure bar and the federal regulations knew of the geographic location requirement and chose not to enact it and so  to only an act that limitation you know on the on the statutory interpretation line of cases why isn't why isn't the departure bar reasonable interpretation of the statute the statutory scheme why or why are some of the other circuits not wrong on that point  can you just why isn't it reasonable interpretation of the statute the departure bar why does it conflict with statute i mean it seems to me like you could make a case that it's a reasonable to petition the statute if we get to the departure part point so the departure of our federal regulation and interpret the departure bar as another distraction that was not set forth by congress so well that's true but there but the but the the statute doesn't cover it either way i'm really asking about is there's a conflict with the underlying statutory scheme is the regulation conflict and i'm not it's firelight it doesn't tell us that it has other limitations but does it conflict and if not is that important to your argument it does conflict because it's a statutory right to file a motion to reopen and  there's nowhere in there where there's a geographical limitation so that's where it conflicts with the plain language and i realize that i'm getting into my rebuttal time stuff i can you because i didn't we didn't get into the merits of that in my brief and because we believe that the board didn't decide this case on an issue we're not going to defend that part of our in this case and that you have to look at it strictly speaking for the immigration judge she just denied it strictly on the departure bar and didn't get into the merits but then when you get to the board's decision very kind of go through the procedural history of the case and they know that the immigration judge denied the case or deny the motion reopen based on the departure bar but they didn't base their decision on that they went on the merits and they said that the immigration judge was correct back in november of twenty fifteen when she the issue of the  that that was not addressed no i would say it was addressed i'd say that the board deny the motion reopened because she hadn't established the exceptional circumstance where is the explanation any explanation about a rational explanation or cases require about exceptional circumstances i'm looking at the board's order and what doesn't use those those words the words near those words but if you read totally different because they're the only explanation given was you normally give telefon hearings i get one two that's all they said right well and it's an unpublished opinion right not presidential that's correct but it's the same scenario where it was kind of a last minute issue and in this case if you look at the fact pyrrhus went back to your parents went back to guatemala in september of twenty fifteen she had two months to ask for an extension ask for a continuance she already i mean the reason why she was first admitted to the country was she got a parole and her attorney already asked for a continuance once in the case an immigration judge granted so i suppose she was in the hospital though in the united states on the very day of the hearing and not only couldn't appear but can appear telephonically either what would be your view on that exceptional circumstances that's not that's the day it's physically preventing her from being there but this is she went back to the country that she's saying she wanted protection from from she seeking medical attention back in guatemala and it was two months before that and it's you can't even though there was some i guess you with mexico city and talk to the embassy there and us yes they are but the exceptional circumstances in the hospital the hypothetical has to do with something that prevents her from getting there that day well you may very well prevail on that issue but why not let the b i a give us exactly the explanation that that you're giving us rather than trying to rely on a because really we're wrong on a parent that a call to an unpublished a circuit decision that is judged ten points out is not directly on point so why not let the be i explain that to us i'm saying the board could do a better job of explaining it but i think they've come to the same conclusion where based on the facts of the case where  immigration judge in the b i a didn't use precisely the same grounds in other words c the immigration judge really relied on the departure bar in the reasoning was for the departure bar whereas and said i don't have the jurisdiction to decide this i really didn't get into the merits then you have to be i a coming in and saying well we're not going to law discretion and judgment the whole motion reopen is a discretionary determination it's reviewed for abuse of discretion so the board recognized that they didn't sweep it under the rug but they said exercising arguing over discretionary view we summarizing the procedural history doesn't say that the immigration judge denied it based on the the portrait from the united states it's the bottom of the third paragraph where it's kind of summarizing the procedural history and says immigration explaining i'm not ok i'm not diverting from you have to kind of presupposes that her first application was abandoned in order for them to say the she's not eligible to apply for asylum because it would make any sense for the board  she's not without filling in the gaps though if we were to take if we were to take this reasoning at face value and she were still and she had applied and then and then and then there was no abandonment this this particular analysis by itself only requires the application occur while she's in the united states and anything subsequent to that has to be dealt with by something else so taking this on its face if this is the sole reason to deny that would be legally and correct because she was in the united states when she applied right and she had her first case was perfectly valid this statement by the board doesn't make any sense at all because she had she was paroled in the united states and she was permitted to file the first application but you have to read the would she have an opportunity to it seems you could have an opportunity to rebut a presumption as opposed to an absolute statement that that your departure indicates or establishes and i think that's correct i are filling in the blanks of what the last of the citation to that one the limited statutory provision would mean from the board then and in other words could they have scooped in that entire abandonment  would have required some kind of determination of whether it was in fact abandoned or whether she had overcome that presumption but i think the board could have done a better job of explaining exactly what it did but i so we believe this is a threshold the threshold issue needs to be decided in this case but even if it's not the two issues that are given by the b i are not pleasurable to the motion to reopen and it needs to be remanded for fact finding if it's remanded for the fact of whether miss  have to dig in the case into the cases judge benton mentioned to be able to figure out that it doesn't actually it's not on all fours but why isn't that a finding on the merits why isn't bad enough to tell us that they they denied it based on exceptional circumstances then don't get me wrong really really fen but why isn't it enough because there's no review for an abuse of discretion there's no factual determination is made on this issue and it's a totality of circumstances explanation and they never did it as holiday of and so even if we go back down to the bee ira and have them clarify what this says if the issue of abandonment the issue of abandonment is only raised in direct relation to a motion to reopen so without the motion to reopen we don't even get to abandonment and so to hear it's the direct basis and defense to deny a motion to reopen so there would have to have the authority to hear a motion to reopen in order to issue and so we would believe that that threshold jurisdictional issue again would have to be determined by the court in order to have the be able to determine the abandonment issue and then for i think regardless of the fact we're here today because this was the order was never heard on the matter the cia never determined mr perez this motion to reopen on the merits and while we believe that he adopted and that the i dropped of the immigration judges jurisdictional basis and that it that it would not disturb the basis of immigration judge's decision which was jurisdictional we believe that the threshold issue of the departure bars here before the court today and we would ask the court invalidate the departure bar remand this case the b i a for a determination on the merits of whether exceptional circumstances existed in this case and if there's no other questions from the court thank you counsel for the argument case number seventeen  fifteen eighty four is submitted for decision