judge the district court erred by failing to apply st cyr to my client who had been advised by the immigration judge that he was ineligible for two twelve c relief when really he was eligible for that relief so you're held that reasonable reliance excuse me of aliens on the availability of a report before we go to that could i ask you something about the exchange between counsel before the immigration judge and the judge understand that this was a bond hearing this was not a hearing at which the eligibility for relief was supposed to be addressed but it did come up and it came up sort of in a sideways way and at the urging of government counsel the immigration judge advised my client that he was ineligible for two twelve c relief because he had already received it in the past the immigration counsel there earlier than that characterized my client immigration lawyers position as being that he was eligible for to close the relief plus cancellation of removal and some hybrid that's not the position that was taken by my clients immigration attorney he was seeking a straight up to twelve c that the judge said was not available but in response to what the immigration judges say the immigration attorney said the i j invited further briefing on this hybrid claim of two twelve c plus cancellation of remov al well that's a nobody there is no such claim that would have been non frivolous the claim that my client was entitled to is two twelve c now the high brick lane and the immigration judge did not invite further briefing on electric put your research into writing if he's been granted to twelve c already and that's the standard that he can't reapply for it but if you want to advance some sort of unique theory combining that with cancellation i'll give you an opportunity to do that that's exactly correct have said you know let's talk about relief i think about really if you had a chance to visit it and here they go they start talking about relief they're not talking about bond and they know they're not talking about bond well they sort of go back and forth but you're right the absolutely right that's and he refers them to this release and what  client's immigration lawyer says he is eligible for to twelve c not some hybrid with cancellation of removal it's the immigration attorney that says what he's claiming is two twelve c plus cancellation that's not and it seems fundamentally unfair if they have the option to apply for to twelve see that they're not told about it as a way of waving their deportation i mean that's the classic example and that's why it's fundamentally unfair so the question we're being asked to i don't know how unfair that was part of the you know the i g might even have been right although neither the r j nor the lawyer were expressing this very clearly and i can't quite give you the answer it's a question the judge holland  says you can't have a two twelve c and then later a cancellation of removal the i just not coming out of nowhere with this and he might be right i don't know well that may be true your honor but in your honor talked about the classic example but there's another example and that's the the case cited in my briefs and other cases in which the immigration judge affirmatively says to the alien you're not eligible for this relief and then the alien acquiesces and that's what happened in this case and if you look at what the immigration judge says i think it's confusing but if you read it carefully you'll see that he says you can't reapply for it period the immigration then judge then says if you want to apply for something else which is this twelve c plus cancellation of removal then you can do that but with the immigration judge clearly says based upon their presentation of government counsel is that two twelve c itself is unavailable and mr probus in a vick then acquiesced and that's why this is fundamentally unfair that you see the i g might be right even independent of st cyr i'm not sure but he might be right but he's not right that he's not eligible for twelve c that's wrong he is eligible for to twelve say he was at that time having to twelve c before assist me because i'm just a simple public defender i don't understand all this fancy immigration stuff you're just a country lawyer exactly st cyr dealt with too closely and i was in the context of removal as i understand it so i think we wouldn't have to  issue but even if this were true mr brooks and if it did speak to reopen and that motion was treated as a motion to reopen it was denied by the immigration judge he is now in croker he doesn't have a lawyer helping him the b i actually sets a briefing schedule and while the appeal is pending he is against his will to forward it so this i think shows that mr book is going to be good much more than other aliens like the one who baldo who are simply advised that the immigration judge didn't think he was eligible for relief and alien acquiesced and nothing more was done so if this is a question of exhaustion or whether it's fundamentally unfair this guy was appealing and they just whisked him out of the country even if your honor is right that the just to the advisement is insufficient to show exhaustion and his denial of this appeal itself is an independent basis for a finding that it was fundamentally unfair i'll just move quickly on to a couple of the other issues that we have because i think they're interesting i'm trying to be energetic for the court because we're getting late an issue of first impression has to do with the conditional plea the question is are there any enforceable constitutional limitations on the government s statutory consent provision and the answer has to be yes because the government cannot deny consent to a conditional plea on the basis of race or religion or gender and that's the same with five one point one  n the same with three one point one b when what those cases addressing those other provisions say is that in addition to race religion gender the government may not be arbitrary in its decision whether or not to agree or file a motion or consent which means that the reason has to be rationally related to a legitimate government and that's what the house was defined by as arbitrary and here the government did not claim that the motion was not  positive it clearly was instead the government counsel said i want i think that the spill has no merit and so that's why i'm not going to consent and this is not a legitimate government and for the government to substitute its judgment for the court and it's not rationally related because it didn't deny the appeal instead what's happening is that defendants are being punished for their appeal with a higher sentence because ultimately they have to go to trial and it's a bench trial and even if it's a bench trial the way we did where the government had no reasonable expenditure of resources they withhold the third point and the client ends up with a higher sentence this is just a way of squashing trying to punish people for appealing right that the administrative remedies were here or not exhausted because the i j a did not finally decide one way or another in the context of this bond hearing whether the defendant would have been eligible for discretionary relief he invited counsel to prefer it and at that point minutes later the defendant jumped up and said just remove me and waive his right to appeal and so that's the end of the story  and you look at the exact right language in the in the transcript so that's one ground one hurdle that the defendant fails which is an independent reason to just and the first argument the second is that the proceeding did not deny him the opportunity for judicial review he denied himself the opportunity for for judicial review because he requested removal waive his right to appeal and did not seek a stay and he was represented by counsel during the proceedings there are state provisions who did not seek a stay the rule the regulation is that without expressly seeking a stay you'll go ahead and get it if it's a motion to reopen there's no automatic stay now turning to the more substantive issue perhaps the more interesting issue here is whether there was in fact a defect in the proceeding that violated his due process rights and there wasn't and in fact the law actually is clear that the i j a was right received the relief before he was in fact not eligible for any discretion i relief again now we can also address the argument that's raised by counsel for what the st cyr argument but you don't need to even get there but if you do want to get there this is as the court said i think in the first argument outside st cyr land and the reason for that is because mr because you know they went to trial and under the ni other issue raised by counsel here is the discretion or the government's ability to decline consent to a conditional plea now the government has absolute discretion where the defendant and the government both have a right to a trial and the government has the absolute right to consent or not to a bench trial as in the singer case or to  conditional plea but the government at this court has realized does have a valuable right to have the matter tried that's the same as the defendant does and as in the singer case which  cited are twenty eight letter to the supreme court held in the context of the government's ability to consent or not to a bench trial as opposed to a jury trial that the government has that absolute discretion and in fact  any reason for declining that discretion and in a post wait case the ninth circuit held that the raise decision nine hundred ninety three that even where the defendant was arguing that the decision not to consent to a bench trial was based on racially motivated reasons the government simply did not need to articulate any reason at all for declining consent to a bench trial and the government  that that same standard as the statutory language is virtually identical would apply here if the court has any further questions you have to address them otherwise will submit is not thank you should mr focusing of acquiesced when the immigration judge said this is not available so i don't think it's fair to characterize them as having you know knowingly intelligently waived her right to appeal especially because during the