towing or through the agency's own suicide on to power a three member panel with one dissenting did not adjudicate his request pursue a sponsor reopening while the motion was pending the petitioner some with a supplemental argument that he was no longer deportable notice to appear says doesn't say anything about the extinguishment of the status all it says is that he had an l p r status in december nine hundred and ninety one the notice says he can assert any defenses that he has and do what he has to do seems to me your total argument in this case is there's a nine hundred and ninety six dollars removal order out here and we don't have a case saying it's void so therefore we've got to do something in cork to help me but if i could get the government to say that the nine hundred and ninety six removal order is invalid and void seems to me this  i'll also be quiet you can make your art point out that in the record there is a case another case a one million append where that the agency has maintained that because of the deportation that he can't apply for twelve c relief so well but that's because they had an order they don't have one and if they just government will certainly give you an opportunity because i know you seem to have something else to say when your opponent said he of course wants to apply for to twelve c relief and you sort of hesitated as to whether he could do that this case  and that's what i was getting up to clarify earlier the stipulation that was previously requested a few days ago was not as to whether or not the one thousand nine hundred and six dollars order remains valid especially since this court again granted the motion to dismiss saying that that is  order of removal given that the h s canceled the reinstatement there of and without a reinstatement that order isn't forcible it has to be reinstated to be enforced and it's been executed which is what's going on time the effect of his conviction things like that and that was the entire point of the argument raised in our opening brief that this case is moot because he's getting exactly what he's asking for the opportunity to pursue exactly that whether or not he merits it as well no i  reason this was not moot is because he was still going to run into problems being able to get to twelve c relief unless something happened and that that happened in another case and that's why he was still here that  elve c i believe he actually has filed that application this is exactly what he asked for in his motion to reopen he did not say anything before the agency about these continuing effect arguments this is entirely new that was raised for the st time in his  final he has exactly what he's asked for if there's a concern about the prior removal order e h s is cancellation of the reinstatement operates as a matter of law by the statute it cannot be k well i'm that i want to give petitions counsel chance to respond i think the judge in this dialogue has been helpful but what i would be inclined to do if you're you're saying that the governor is receptive is to send you all to a mediator so that you can work out something that we could then enter because we're not in a position to do that here right now are you saying that that's you think you think there's a way that the two of you are going to be able to get together and give him one hundred percent of the relief he seeking because if not then i think we need to hear from him then hear the rest of his argument that one hundred percent of what he seeking we can't do that because he wants to twelve c relief and the justice department can't grant him that this this court should not perhaps could but under the ordinary man rule the agency should be having the st opportunity to determine his statutory eligibility and whether he merits it as a matter of discretion yeah no no i'm not asking a simple a that he gets to twelve c really all he wants to do to be able to do is to have a clear shot at getting that relief totally freed from any baggage from the ninety six removal or i don't need mediation to accomplish that that the government this is part of the government the justice department doesn't need to be involved in what's already ongoing what what you initially came to us and said is that hey the refused to reopen my original one thousand nine hundred and sixty remove scenes from way back i want you to tell them that they must reopen those proceedings and then you would presumably all we would do is just p r status my hearing that the government i'm hearing that the reinstatement has been cancelled and so therefore they can't reinstate it again but that's not the same thing as taking away the deportation order so that i can apply for ultimate goal is terminations proceedings but i can't do that when he still has a one thousand and sixty four taishan order that hasn't been reopened by the right so that's why i mean what the government wants us to do now is just simply dismiss this petition as move and i'm not certainly prepared to do that they don't sound like they're willing to do anything else beyond that and so assuming you're not ok with that unfortunate no i have to represent my client's best interest no i can't be ok with that that's what i thought so so what i six so that's all i have ok well do you is there something more you want to say you've still got time on the merits of the petition that you've submitted to us no i think the abuse of discretion is clear on  face and i don't think that the board at the court needs to reach any of the other issues they didn't explain their agency action and i think revenge is required and that is ok thank you very much do you have anything else to say if you do you know please please six and a lot has obviously happened since then at the supreme court cited st cyr for example the petitioner illegally return to the united states and by illegally that would be if any of us return to the united states the way he did so without it seeking that's again a moot point but what the agency was doing here what what he called upon the immigration judge to do was to reopen his case to apply effable towing and exercise to a spontaneous already the judge declined to do so because he waited too long at least as affirmed by the board he simply took way too long to do anything about his case so as a fax that portion of this to the extent it matters given everything else that's already ongoing before the immigration judge he felt that with diligence and this court case you know that's not my view i'll just because be branded with the i think think he did everything a lay person could be expected to he was told repeatedly by lawyers who should know better there's no hope for you go go on about your business there's nothing for more for you to do and it wasn't until very recently that he finally found the air who competently advised him that actually there is something you can do so i don't that to me seems like there's diligence a lot of lawyers or two lawyers there was  lawyer his st lawyer again the district court of idaho found that he received ineffectiveness of counsel again that's the question before the agency right now whether or not that resulted in prejudice to him  in two thousand and ten and then seeks admission in two thousand and ten both of those times these are moby does nothing then so why is from two thousand and seven to two thousand and ten it's ok for him to do nothing and he's actually subjected to the effects of his ninety six dollars we were again does nothing then it's another five years he's found in the united states and that's when he's found to have acted diligently because it's suddenly a because the government charges and within a disability or our case is what our cases say is that when you go to a lawyer and you get advice and a lawyer says it's hopeless you're done go on about your business that unless there's some intervening event that alerts you to the fact that you got that advice way back when no that's there isn't anything you're expected to do what why would you be expected to do something you don't know the law you need some pain or being you know that and you have not in your brief pointed to a single intervening event in that entire stretch but there's two principles here the intervening event events actually are his two thousand and ten removals at that time he was being subjected to interactions with the government as to his room ability but that would've been a good time for  a change in the law or something of that nature something yes but that all of the cases described that the actions by the alien to demonstrate diligence must be reasonable and waiting this long simply isn't reasonable that's exactly what they what the immigration judge and the board held here as they simply waited too long whether or not they were intervening events st cyr was certainly an intervening event in two thousand and one changes to board regulations this court regarding those saurez and c time versus l p r time those are intervening events waiting from at at best in two thousand and seven to two thousand and fifteen that's another eight years and is that reasonable even absent and intervening event setting aside that he interacted with the government two more times as it was again if the court disagrees on the diligence point or anything else here it's certainly within the court's authority to remand this to the agency just find this moot it seems to me at the end of the day i think that's where we're headed as it should be but if it's moot doesn't that vacate the initial order in and of itself as a legal matter and  right now petitioner is suggesting well no i still want section twelve relief but we can't grant that here anyway director so it seems to me that i mean we'll see what the panel wants to do but if we just if we just you can either agree that it's moot and it's vacated or we can rule that it's moot and vacated and then he can bring up to twelve relief in the new petition i cannot stipulate that his one thousand nine hundred and six rule order will have no effect whatsoever on his existing what i can stipulate to is that right now by the way i'm not sure that you could yeah i don't think you could stipulate i don't think we can bind a future panel to  to that kind of a stipulation anyway what i'm agreeing to is that by the operation of the notice to appear that the h s issued to him after canceling his prior notice to appear which this court agreed with and dismissing the petition for view and six that this is moot and it vacates that order i mean i think that's the most relief you can get at this point and then you're stuck arguing later what the implication of that the that decision s