because the four circuit now decided in and invalidated casterton well they gave some of our credibility to the argument that it was possible that on the standing the but you you were challenging you were challenging the lawfulness of the policy that directs ice attorneys not to move that was the original district court case yes so the i mean whether you challenge caster tom or don't challenge caster tom that's an independent challenge yes the question is whether that challenge is moo i believe it is not because it provides am i not right that that's the question the question is whether your challenge to the administrative order to the u s to the to the ice attorneys is moot which the district court ruled or act and you say it's not rude not not i believe that the government has a very heavy burden i just i don't that's an independent question from challenging castro town yes but that's what the district court relied administratively closure diminishes the opportunity of some of your plaintiffs to successfully challenge castro at some time measures it for purposes of settled expectations yes as well as the general authority of the attorney general to have changed his mind on this because there's two arguments for arguing that castro truman's invalid one the reasoning of the th circuit of course and also we believe that settled expectations and retroactively is another reason because cashman to him did not consider that at all a litigant who wants to challenge castro turn and get it overturned say in the supreme court has a better opportunity to do so if  absence of a record in a circumstance where where the with the attorney the ice attorney might have recommended administrative closure and but for the administrative order and the i j a would have been more likely to grant it with a recommendation and we're more likely without a recommendation to deny it and i gess he might give discretionary reasons i will as as well as castro took him as a reason for denying it or even with even not mention caster just deny it for discretionary reasons where the and and that would would mean that the the person who wants to challenge castro to him is barred from doing said no longer had a veto power over administrative closure and that they would take all these factors into consideration however our point of so not that interested in matter of every t c m type administrative closure because when we have a prosecutorial discretion recommendation it's stipulated by the parties there's really no discretion to be exercised and in my view advocacy and doesn't even apply anymore but the minister lodges didn't have to follow it right you know if i say recommended the ministry of culture the ministry of largest didn't have to follow the i j a didn't have to follow right doesn't have to pay as you see is there anything in the regulations that require them to follow it  to to exercise his discretion and if it stipulated my feeling is that he would be really subject to abuse ok thank you thank you reserve some rebuttal time court my name is ready and on behalf of the united states attorney's office for the southern district of new york i represent the defendant pallies in this matter your honor is the decision of the district court should dismissing the complaint as moot should be affirmed this case involves a aliens four sets of spouses and who have all been and currently are in removal proceedings before the immigration and customs enforcement and before the immigration court they challenge a two thousand and seventeen a policy memorandum issued by the secretary of department of homeland security and that policy memo stated that prosecutorial discretion should not be  exercised according to enforcement priorities so that it certain categories of aliens and instead the immigration law should be enforced equally against all italians one of the facts of the two thousand and seventeen memoranda was that personnel including attorneys could no longer recommend in their prosecutorial discretion and based on their own force meant priorities administrative closure to an immigration judge but importantly regardless of  were rescinded according to the plaintiffs or another fide they went a allegedly be able to see a discretionary recommendation which they assume would be favorable and their case would be administratively closed however their claims are moo argument in my difficulty and i'll explain it and then you can tell me what i'm missing it just seems to me that they now have to accomplish two things they have to get this prosecutorial policy put back in place d h s can exercise process one that the ice attorney has to recommend administrative culture and to the i j a then has to decide and exercise his or her discretion to close it one doesn't what it doesn't follow from the other but it is a process in which one doesn't require and then that is the st steps that require for the nd step there's an independent reasons for an administrative closure but in their instance it would be a process where there would be st a recommendation and then  determination as to called correct that is correct she made she specifically asked them if they were going to challenge castro too and they said no but so she the only thing she could do was say that they were entitled to the letter but she couldn't give them any additional relief with regard to administrative closure because they didn't care challenge castro to your honor's even if the plaintiffs had challenged castro and the district court we would have may have to dismiss for other reasons raised in remedies went to the b i a and then filed a petition for review and that is the process that plaintive should proceed with that might be with regard to whether the court could or could not have heard your claims and so you're saying that even if they had asked the court to do so the court would have been ill advised to go on so because they had not in the morning the appropriate step to to proceed to have a stake in the matter with regard to challenging the legitimacy of katherine that's correct your honor that would have been one of the reasons the government would have raised however that's not the issue here because point of did not raise it they explicitly waived at that issue and even in their briefing before this court several times they specifically state on page three of the briefing on page thirty three dollars of their briefing that they are not challenging the merits of castro time anything or changed with regard to the user has anything changed with regard to the status of the date before the immigration judge scheduled in june two thousand and twenty plaintiffs ramos and lino have a hearing date scheduled before the immigration court and july two thousand and twenty one and the remainder of the plaintiffs have had merits hearing on that really for application for cancellation of removal and it has been continued with a tape set so it's been continued indefinitely your argument presupposes the  continued validity of castro tome you say that there moot because the because it doesn't matter with the when the ice attorney recommends the i j a can't can't grant administrative closure under cas through term so in order to get an order to get the relief they are seeking a plaintive needs to get cast ruto invalidated now if and i j when there's a request made for rejected soley on the administrative on the discretionary ground either way that person doesn't get the opportunity to challenge further challenge castro tome because moot because in that circumstance it's moot because the the the result sought administrative closure has been granted has been denied rather for a discretionary reason that doesn't involve the validity of castro tom and there's no further opportunity to challenge castro to him because of that movement now if the if the lawfulness if if if if if one rules that the order being challenged in this proceeding the order that prevents ice attorneys from recommending administrative for those who were removed such a person such a plaintive would have a better opportunity an improved opportunity to challenge castro term because it takes away the circumstance in which the i j a would would deny for a discretionary ground rather than simply relying on in a manner that will avoid the possibility of overture of a higher court overturning their their orders if the judge rules on the on a discretionary ground that would move it any challenge to castro tome so a petition or who would like administrative closure has a better opportunity to be to to have a non mooted opportunity to challenge castro tom which which will be deprived of unless this order is set aside because because if the admin because the circumstances in which an administrative judge might favor this  removed if the ice attorney is not your honor in romero the th circuit case the district and the immigration judge did deny based on castro time and it went up through the process to the appellate court so immigration judges are denying based on deny their request to  that they can also do not describe an area grounds which would then eliminate the petitioners opportunity to challenge castro term and therefore it's not moot but went before the immigration judge saw administrative closure and it was denied based on another discretionary ground if these cases are at that point i mean the only thing the only thing that's changed is  procedure for someone to challenge a decision that occurred through the immigration proceedings is through a petition for review so that administrate a process had not been completed argument that if the if the proceeding if the proceeding before the district court was not the appropriate place for the challenge to cast through term then you can't say that if we did it because they were simply waiting for the appropriate opportunity to challenge it rather than challenging in a place where the court didn't  know you just told me that the appropriate place to challenge castro would be on the petition for review not in in not in the district court proceeding that's correct your honor it's not a waiver to not raise an issue which is destroys your movements or evil no your honor that the action continues to be moot because there is no relief that that district court could get that was retractable with respect to the the ministry of water telling the ice attorneys you're not allowed to recommend this that will improve the possibility of that point from ultimately achieving the goal raising it at the appropriate place rather than at the inappropriate place of of securing the nd necessary prong of relief that they need which is overturning castro talk you're on your honor it's our position that guard less of whether the two thousand and seventeen memo where it was overturned plaintiffs would still have an opportunity to challenge castro time through the proper channels then happens well then i would expect that the ice attorneys would then have to rule in my requests and reverse themselves again remember one of the plaintiffs was granted prosser tauriel discretion right and then it was revoked summarily at the hearing because of the turmoil memo and so now i was the stipulation for administrative closure and i lost so she's tremendously prejudiced by this and my opinion because she would have had with the case lawsuit in the removal proceedings on petition for you then castro turn would be all right absolutely and i just want to remind the court that one of these individuals already had couldn't get relief from the i j a without the d h s s recommend yes but i would be highly unlikely that it would be granted in the absence of the recommendation because there's multiple factors that dressed in that case when the when the immigration is opposed to administrative closure i think it's a completely different story when it stipulated sixty five thousand aliens got to be granted when it was stipulated and very few it's granted when it's not stipulated in and it's also limited it's validated by a ruling of the supreme court by a ruling of this court and it happens by coincidence that there was a motion before this very panel today that raises the possibility in proceeding unrelated to this one of of cast through to him being challenged and ruled on by by this court as to lawfulness of can i have no doubt that the case with your clients so your clients if they can get the  the administrative warder barring ice attorneys from recommending would have in any of those circumstances a better opportunity to secure the ultimate relief they are seeking if castro tom is