or you were well thank you give my colleagues just a moment involving a removal order a motion to remain and an application for a u v so the primary question before the court is whether the board must follow its own precedents that outline what it's supposed to do when an immigrant is eligible are sort of peculiar because immigration judges don't have authority to grant them so the issue often comes up in immigration or when a person is challenged with remove ability but they're also eligible for this piece of that would let them stay which is only within the auspices of sister agency and the board has come up with a standard for how it can figure out whether to let a person stay waiting on that you visa that decision is announced in matter of sanchez  in this case mr martinez filed a motion with the board saying i'm eligible for a u v here's a copy of the u v sab submitted please let me stay and the verb or whatever it is he's asking for isn't really relevant sanchez so it was about a continuance because it was at the immigration court in his motion mr covey arrow said i would like for you to remain and in this case of the immigration judge so they can continue the case or if you'd rather you can administratively clo argue those two in the alternative and the board's decision and sanchez lists the series of nondiscretionary factors that the board has to apply including starting with the presumption that the presumption favor of a continuance of the person can show that their prime if a shell the devil for a u v then the immigration judge is allowed to consider for example the prosecutor's position if they've been reasonable among other things in deciding this case and deciding the first motion rather than address the factors laid out in sanchez sosa the board here said we don't have jurisdiction over you visas you can seek a you visa from outside the united states so we deny your motion and in a footnote the board said by the way you haven't given us a filing receipt we took an appeal to this court we also filed a motion with the board asking you to reconsider and reopen in our motion to reopen we gave them a copy of the filing receipt i hadn't had it before because it takes about two months to receive one from the agency and and said ok we'll here's the filing receipt and the board denied that motion as well as i understand the board second decision the filing receipt wasn't all that important and in fact there's a footnote that said it does i'm sorry it's not a footnote it's toward the bottom of the decision the board said that filing receipt doesn't really make a difference in terms of our decision that it doesn't how did you interpret that footnote in terms of what the court said the word about the filing receipt it i don't understand i don't i don't exactly know so i start from sanchez sosa and in that decision the person didn't have a filing receipt at a j sixteen of that decision the board said he's still waiting on his filing  receipt and as i understood the footnote in the first decision i interpreted it to mean we're denying your motion in part because you didn't give us a receipt which is why i filed the second motion i said ok well i didn't have one but here is the receipt i interpreted the sanchez prevent the agency from prevent ice from carrying out of a deportation technically it doesn't sanchez sosa gives guidance to immigration judges on whether to order or delay removal if they apply all the factors and say look i don't i decide to not exercise discretion i don't think there's anything we could do in this court my argument is is a step before that we're saying the board didn't apply to factors set out in sanchez so so if it had i would have a much harder time before this court because the board to set up a reasonable standard the supreme court has said in chevron that the court is supposed to defer to the agencies i wish decisions and so if the agency followed its decision and was reasonable i think she judged that that would probably be the end of the day the problem here is the sense of social standards pretty easy to follow it has a list of factors it says the educator has to list those factors and talk about why you did or didn't meet them and instead the board here didn't talk about any of those factors for one it didn't talk about whether he was prime if a shell a double for a u v and two they didn't talk about ok if you're eligible what are the other reasons we might not  so i've wondered perhaps the board didn't think sanchez applied here because we were in a different posture but the board specifically cited that decision in denying our motion announces a standard for continuances before an immigration judge but the board went out of its way to cite that case here in denying our motion i interpreted that to mean the board thinks it applies here and this is getting back to what i said earlier i don't think the verb necessarily matters if you look at our motion we had asked for a continuance as well we said look the board doesn't have jurisdiction to grant continuances but you could remain and for an immigration judge to grant a continuance or you could administratively close i would note that the board in in center sosa did the same thing they reminded for the immigration judge to consider these factors there's a similar case i wanted to point to that talked about in our briefing there's a decision of this court called clifton versus holder which aligns pretty closely to what happened here in clifton the applicant had filed a motion to remain with the board saying i want you to send this back to the immigration judge to consider my adjustment of status the board didn't adjudicate the motion to remain and instead they said we're declining of status and this court said that's not reasonable because that's not what he asked for he didn't ask you to grant him an adjustment of status he asked for every man here our motion asked for every man's so that the judge could apply this addresses that issue and second because this court had already announced in clifton that the court the board can't get out of a motion by saying we don't have jurisdiction to grant the underlying relief because the motion isn't asking the board to grant the underlying relief it's asking for so given the ruling in clifton i think the easiest solution in this case would be to send the case back to the board and say apply your standard it's pretty it's precedent it binds you apply your standard and decide whether  a continuance the outcome and getting back to the judge's question what would prevent the ice from removing him if he has a removal order he could be deported and in theory he could seek his you visa from outside the united states but by physically crossing the border outside the united states all kinds of additional adjustable problems come up more grounds of inadmissibility come up and so it's not just a matter of sort of convenience or preference it's much harder to win a u v from outside the united states which i think is in large part why the board has created this standard at all to allow people to stay in the united states when they're from official legible another thing i think the board missed that's talked about in sanchez sosa is the law enforcement certification to get a u v you have to have a police department or sheriff's department sign a certification that says you are eligible you are the victim of a crime you cooperated and the board sanchez sosa talked about how the existence of that law enforcement occasion is a pretty significant factor because it shows that someone has already exercise discretion in your favor but here the board didn't mention the law enforcement certification it's not clear whether the board missed it or just decided not to talk about it but it is one of the factors that sanchez so says should be considered was october october thirteenth two thousand and sixteen there's no dispute that we didn't have the receipt yet in fact that's in the record at page eighteen and there seed is the proof right there is an empty ones later on the logistical problem and the reason we didn't is motions to reopen have a ninety day deadline so if i had waited for the agency to send me a receipt my debt my motion would be late and my colleague on the other side would be here arguing that you have to deny it because the motion was filed late so it's sort of a quandary if you file your motion before the deadline and give them proof that you filed that you're eligible or do you wait on the receipt i go back to the text of sanchez sosa sanchez also does not say you need a filing receipt it says you need proof of eligibility and in fact in sanchez sosa at the c toward the end on page sixteen the board there said he didn't have a filing receipt all he had was proof that he was eligible and there the board said it was enough to remain on this case back to the immigration judge i don't think the filing receipt was necessary and getting back to judge cross question i think that footnote was probably a throw away and they clarified it and their second decision saying ok you've given us the receipt but that doesn't really make a difference we would ask the court to not step on the agency's toes of course to ask the agency to apply its precedents if it wants to change the law if it wants to change it standard it has to do so in a way that gives people notice and publish a decision or issue a regulation or something that talks about the standard and how you would  remains for you the says otherwise we have a better term than keep the government honest that's right follow your own decisions or change them and in the courts can decide whether you've been reasonable or not under the standard that we've all known for years under the ministr morning and they please the court you know strictly for the attorney general and as i'd like to start by clarifying i think the big pullinger big distinction that we have and that's the application of a matter of interest sosa to this case and in very simply put it's in a as your honor pointed out that case dealt with when you have ongoing proceedings before an immigration judge where you're asking for a continuance that's not the procedural posture here the act of violence against petitioner didn't even occur until the continuing you know we're just in a different posture and that's that's fine each the immigration judge and the board have different tools to deal with this so whether it's you know you know petitions council raises the point of did the the board apply it at here is that the tool and petitioner concedes that they do not have the board does not have the ability to continue proceedings continuances are only for immigration judges and there's good reason for this distinction which is that why would we remain and to reopen proceedings that have already been completed when they achieve the same purpose which is to take it off the active docket and so just depending on where you are procedurally there just aren't ways to get there the tool before the however was address matter of abitibi and to say that in this case it's not warranted now i'd like to know the petitioner waive this any challenge the matter abba t z and so in his opening brief by failing to challenge it he only mentions that once in a footnote so when you carry a strong tome decision that seems to say there's no administrative closure rushbrook that's correct so if this court were to remain for administrate of closure that is no longer available because the attorney general and matter of caster toom overruled matter of a teasy and to only apply basically saying when there's a regulatory right or there is some sort of settlement agreement where administrative closure was provided so for example if this was a t v is a case that's in the regulations that they can admin close but it's not for you visas so the effective outcome your honor would be that this just wouldn't be available or be moot as far as admin closure is concerned but i want to bring up one other point to which is just a people and they've also employed two separate service centers to try and adjudicate to get people on the waitlist quicker just to address your concerns about that but again this is you know one of those cases where the board did evaluate these these factors final order of removal again per the regulations an alien who is subject to a final order of removal is not precluded from filing a petition he can pursue this from inside the united states or outside the united states and his remedy could be to seek a stay under two having a different immigration judge issue a decision once the previous immigration judge retired again a due process claim requires two components a procedural error and prejudice petitioner can demonstrate neither it's very clear from the record that the exact regular tory provision on point was complied with the immigration judge became unavailable because of retirement and then a second immigration judge came in review the drafted decision and agreed with everything that the previous judge had had dictated it sure never complains about the content of the underlying hearing there was no allegations of any sort of defect in the underlying proceedings there's no allegations that the second i j was biased or anything improper there and if anything petitioner actually had more process because now he's had two immigration judges reviewing his case both of which this second immigration judge did not have to rubber stamp the first one the immigration judge the second immigration judge could go a different way if if after reviewing the record of proceedings he or she felt differently so in anything petitioner has had more process rather than last and again  other sister circuits who have have reviewed this have even said when they don't comply by saying those magic words which is per the regulations they have to three million eyes themselves with the record of proceedings and state so on the record that if it's clear from the decision that's good enough and in this case we don't even have that we have the explicit dictation from the immigration judge that he reviewed the entire proceedings and that he also adopted and affirm the previous judgment there's no further questions from the core briefly conclude counsel why would every t z and political president rather than inches because it doesn't exist anymore the attorney general has now said administrative closure isn't a thing but if you get back to our ask if you look at the motion it's quite plain we were asking for administrative closure the first thing we asked for was for remained and a continuance and then in the following paragraph we said in the alternative you could administratively close the board at page twenty nine of the record only addressed that second part  only addressed administrative closure and we would concede since we've finished briefing here the attorney general has said administrative closure doesn't even exist anymore so this is not administrate of closure case the court doesn't have to apply the factors the second answer to your question is because the board said so and in its decision at age twenty nine it cited matter of sanchez so said it would not have done so if the decision was in him and applicable the department of justice is bound to the board's reasoning if it doesn't like the board's reasoning it can but my motion is at page thirty seven of the record to be clear the specific thing we asked for is eligible for a u v set and has the application pending however because the board doesn't have authority to grant a motion to continue we respectfully move the board to remain on this matter to the immigration judge that was our ask and then the following paragraph was about administrative closure  the second point i wanted to talk about was this administrative lag time why it's taking so many years to process you visas i think at footnote four of my colleagues brief they indicated that the agency is currently processing new pieces that were filed in october two thousand and fourteen point i would make is that it's bureaucratic morass it wasn't created by my client and it's not his fault the board has done what it can to solve it by creating a standard matter of sanchez sosa or does acknowledge you pieces are taking a long time which is why it's given the immigration judges the tools to say in some cases we're not going to grant a continuance when you're not likely to be granted one or when you're just a bad person and so even if you got granted one i don't want you to stay anyway the judge has those tools standard a matter of sanchez sosa and it is asians as us tools the final point and just to wrap it up the department of justice made some due process arguments my brief doesn't raise the due process argument we haven't challenge that he received to process the argument he made about the was that the only thing the board addressed was due process and in his briefing to the board he had raised statutory regulatory and presidential arguments for why substituting the immigration judge wasn't permitted and if it is permitted there's a way to go about doing it and so when the board says we think you've been given due process argument to this court in my briefing what's your best authority that the board that if you have a judge retire or get sick or die all of the different reasons that there might be a non continuance of the same decider that having a substitute judge review the record make a decision based on the record in existence giving due regard to what's been already done is not an appropriate thing for the b i what you've just said is exactly right that's what they're supposed to do the regulations say when the judge becomes unavailable they can substitute immigration judge but that same regulation says they familiarize themselves with the record it's just not clear that that's what happened here because the first judge dictated her decision she recorded it and then the second judge signed it and it doesn't say he familiarize himself with the record it doesn't say he went back and listen to the testimony my colleague mentioned red rubber stamps that's the essence of a rubber stamp who are here any good the second judge indicate in any way shape or form that he or she or can't remember reviewed the record at all there's a  second decision that said he has he agrees with the decision i don't believe it says he reviewed the testimony when he was our our main complaint ok thank you thank both counsel for the arguments you provided to the court this morning in the briefing which you've submitted will take your case under guns and maybe excuse