interpretation or recommendation or course of recognizing a critical factor on that issue is the extent to which the member would have left to the agency or officials freedom to exercise their discretion to follow or not to follow the this was not required by regulation this there is no requirement other than the crappy memory the facts of our case martinez's in order to show cause was in fact issued march twenty fifth one thousand nine hundred seventy the crappy the statute anywhere the regulation anywhere other than the crappy memo the government had discretion to choose to go forward under the immigration law as it existed prior to the issuance of ira april first nine hundred ninety memo prevented that the chief judge interfered with that choice of government whether or not to proceed at that point the i mean it was left with the other option but to proceed under the ira and the changes  system in place where the government could even schedule hearings with the immigration courts and it was told to the immigration courts that they would have to delete that and that those actions would be dismissed even if was already scheduled in in their computer that's the only thing that stopped the government from filing and there were hundreds of orders to show cause which were dismissed out of hand based on the memo immigration judge decided the chief judge manal and dismissed the charges so in fact there are cases where the government attempted to you please the court my name is jonathan cohn jane i represent the attorney general john ashcroft your honor this court has repeatedly held that are we are applies where as here the charging document was filed after we are suspected da moreover petitioner's a p a claim in this case is a pure red herring the memorandum in question is not a rule because it does not erect any legal requirements it's just remember as you pointed out but even if it were a rule and even if it did require notice and common rule making what what was it in your view in this record that caused the fire going to be on april twenty third instead of earlier before the beginning of april that's a question of prosecutorial discretion which this court just know that it was filed on april twenty third that's correct your honor and the facts of this case are nearly identical to court has fully in which like in this case you have the service of an order to show cause before the effective date but no filing you have the filing only after the effective date the exact same thing you have here and this court held that are we are applies not the old rules but the new rules of cancellation of removal that's exactly what you have here and the decision of court has felipe was not based upon a memorandum the memorandum was never cited on cortez phillipe rather the decision was based upon the plain language of the regulations namely section c three by this court numerous times in him in as in vasquez in arm in cars montoya these decisions all make clear that is the filing not the service of the charging document that commence proceedings so the mere fact there was a service order to show cause in this case is irrelevant all that matters is that the charging document was filed after we're as a fact of date now petitioner contends that there's a prosecutorial discretion was somehow infringed in this case this is a bizarre argument for a number of reasons but first of all the memorandum in question was not even issue to the prosecutors it was issued to immigration judges court administrators and court staff now  these but even if you could you still get the new rules because it's being filed after the effective date in addition to regulation three point one four a there are others that make clear that proceedings commenced upon clear that her basing their decision on the regulations not the memorandum and the regulations provide that the filing not the service of the charging documents the memorandum in this case was completely irrelevant the immigration judge didn't even cite the memorandum in reaching his decision rather he cited the regulation i mentioned earlier three point one four a that was the basis of this decision that are we are applying that regulation as noted provides that proceedings are commen follow the statutes and the regulations there take those documents seriously as well because they have to they're bound by them but again the argument he made here is one of prosecutorial discretion and this memorandum didn't even go to the prosecutors for robert went to the result that are we are applies second of all the regulations themselves are unimpeded us and provide that is the filing not the service the charging document that's the operative event and third even if you sue marc you window that this memorandum is a hearing parts april first one thousand nine hundred seventy we're not arguing that we're arguing that after april first nine hundred ninety seven proceedings could have been commenced with the filing of an order to show cause but for the judge crappy mammals that's a distinction we're