america and we are delighted to actually and i are delighted to have him with us we are going to be hearing argument today in six cases there are two cases that are on the calendar that have been submitted saying versus barr is one of the cases that's been submitted and breadth versus plumlee is the nd case that has been submitted on the briefs the st case we are going to hear is mendoza valdes counsel place when you're when you are ready we're left with just a question of the propriety of this rather untimely motion twenty one years after the fact we rather tenaciously rely on cardoza and what is buried which simply stand for the proposition that if the conviction is vacated that the time a numerical limitations of a motion to reopen are not a political the government makes a great deal of the fact that cardoza case was in fact timely it was filed on day eighty nine and you ninety days but the rather inconvenient fact of what is berg is that was filed nearly seven years after the order of deportation so it certainly wasn't timely in any way shape or form but in that case there was no statutory time limit at that time right  the departure bar was an implicated that somehow those cases don't apply which is a bit of a straw man a red herring if you will because that was just an independent ground to deny a motion to reopen if that's stripped away from the analysis then the only question is should the matter be reopened based on the fact that the underlying deportation order is the conviction is vacated our other argument is that you know it does really implicate some serious issues of federal between the states and the federal government i mean doesn't the government argue that the word departure is not found anywhere in its c f r subsection twenty three right so what's the how do you how do you address that why why isn't that the sp a well it's not dispositive because that was not the grounds for denying reopening right i mean they just said that there was no exception to the time in america's item the departure bar is a now discredited form of denying relief if the alien left the country and reentered therefore the vesta court of jurisdiction that's not the but aren't you citing cases the deal with that question in a particular statute which has that specific language in it which isn't present and subsection twenty three right it's not but since those cases they you know both of them sort of intertwined right i mean there was the departure barga still had to then address whether or not there would be you know the departure or didn't pause because the conviction of a key and that's what some of the those cases basically stand for is that if the convictions been vacated then the departure board is not implicated and that's literally you know of the unpublished case former justice  he sort of relied on that and said because the conviction was vacated the departure bars not a political so i mean it too is kind of apples and oranges if it's same time they're also somewhat related because the question being is was the prior order legally executed and we say it was not or could the petitioner have avoided removal if the possession for drugs had not been in play at the time of his removal well if we go into a time machine there's a number of things that could have happened i mean number one he would have been eligible for voluntary departure he certainly could apply for asylum under the law and that taking time your eligibility for a form of relief under suspension of deportation didn't stop even from final order of removal so he could have basically hung around might well have been eligible for suspension however the other point is the you know an order of deportation that flows from an aggravated felony conviction has other carthaginian consequences i mean you're for relief ever you can return and you'd be subject to criminal proceedings for reentry of the removal so there's a whole series of deleterious consequences that flow and again you know like i mean again we know it's not dispositive but that was the same situation in the conviction right he wouldn't come to the you know in the real world you don't come to the attention of immigration unless you commit a crime and they find you right so that's how he was placed into proceedings but on the basis of the conviction so that's clearly the key part of the government's are on people removed routinely for being charged with entry without inspection but i mean in the real world you have to do something to come you know we live in a different country and you don't just pick people up right you generally make you went to deportation proceedings because you committed a crime or perhaps you filed for relief and it was if you weren't eligible it's very rare that it happened in any other circumstance in this case that's exactly how it happened he came to the attention the government by virtue of the conviction but i mean there's a difference between what would have  happened if there hadn't been a conviction as opposed to what the legal consequences are because the convictions been vacated and this case really isn't about what might have happened had if we were all able to go back into the time machine that you've described right but again that's true but we have to live with the fact that that's what happened in this case you know he came under the purview of government because we're going to action and the conviction been vacated and our position is that the case compels reopening and i can reserve a little time thank you  about the petersburg and the cardoso tell a nd case but those cases do not create some sort of exception to the time limitation they are substantively different than the st in that the key difference is that the was put in place in the mid ninety's through regulation and then it was codified by congress soon thereafter and then in cardoso we had a timely motion to reopen so that is a key difference and that the time limitation itself is not just a ministerial requirement it's a key procedural crime and it serves the fundamental purpose of giving some sort of finality to immigration removal orders and related decisions and that this case kind of beer is out the need for that finality giving significant passage of time since his initial deportation order and the actual deportation and as a legal reactionary bit unfair for the petitioner his conviction is vacated years later i mean by definition there's no way could be timely writing if you can't write i mean isn't there some at least if a fairness argument for the petitioner that sure it's active ministry of grace through the board suicide sue sponte reopening his proceedings which he has not asked the board to do nor convince them of that and  e common sense while you may see this as a potential fairness issue is the amount of time that has passed that mr mendoza it was ordered deported deported shortly there after illegally rented and then proceeded to illegally live here for twenty plus years to now put his case back before the agency it just  it kind of it disturbs the need for the finality of the removal order and he the homeland security can reinstate his prior order without without him being able to collateral no claim or showing of actual tolling and those are the only avenues that were before him and his emphasis on the whether the conviction was a key part of the proceeding from cardoso that phrase has no relevance to the timeliness it has only to whether the departure bar should or should not be applied and so the court does not need to get into that that issue at all and if there are no other questions from the panel one other question would the petitioner have been eligible for some status readjustment if not but for the conviction on the drug offense he what at the time the inquiry is back at the time of is deportation order at that time he was not nor claimed to be eligible for adjustment of status he he at some point married a us knighted state citizen and and claims to have obtained previous petition but that seems all after the fact and so and he no longer presses that claim that he is currently eligible for adjustment very briefly in terms of this was really in the record in terms of you know sitting on his rights and if you see the underlying motion was based on penal codes and sixteen point three which was promulgated two years ago i mean that avenue of relief didn't exist prior to that you would have to file a writ of habeas corpus and if you weren't in custody there was no jurisdiction so he didn't release it on his rights until there was a remedy available in terms of if this case were reopened he would be eligible for adjustment and i have departed from that since his wife filed the petition before april th two thousand and one obviously she did it in one thousand nine hundred and three he's grandfather trailered ability for adjustment and i can see my colleague that at the time of course he wasn't eligible but again that's you know again just as kaczynski in that case the facts are basically the same right i mean he was and it was a very relieved at a time but it still formed the basis of the deportation and he granted reopening in the factor