judges and the board have granted requests for administrative closure nearly half a one million cases and until last year no one questioned their authority to do so last may the attorney general held in matter of castra tom that i days and the board do not have the authority to administratively close cases and he invited the department of homeland security to restore more than three hundred and fifty thousand dollars close cases to be active dockets of the immigration courts your honour's of the attorney general's decision was as flawed from a legal standpoint as it was misguided from a practical standpoint under federal regulations i days in the board plainly possessed the authority to administer it if they close cases and even if the regulations were unclear general decision would not be entitled to  deference because it reversed nearly four decades of agency policy and because the decision was simply unpersuasive on its own terms the court to does hold that matter of castra tom was wrongly decided and that i g s in the board do have the general authority arguments the next part of the regulation which says that any action must be consistent with their authorities under the act and regulations which would say to me that there has to be some other derive the authority from that language minutely i don't think the government makes that argument but when i look at the regulation the plain language seems to say to me that there has to be some other existing authority that you take any action consistent with a few responses that your honor st as you know the government did not make that argument and neither did the attorney general in his decision and of course under the chancery doctrine this course is limited to the reasoning provided by the agency that being said i do not think that the language be consistent with language is necessarily kin to for example the necessary and proper cause in the constitution where it authorizes congress to pass laws that are necessary and and proper t example you know the acts states that if an alien a parent appears fails to appear for hearing and there and there is clear and convincing evidence of a movability then he shall be ordered removed in absentia so in that case it would clearly be that regulation is that because because administrative closure is indisputed lee an action is that ideas in the board have the power to administer to leak close a case whenever they deem it appropriate and necessary to do so in that particular case now we  course do not dispute that administrative closure is not appropriate and necessary in the vast majority of cases and we do not dispute that administrative closure but the attorney general can provide guidance and limits on what administrative closure is appropriate but that is not what the attorney general did in this case he held that i g s in the board don't have the power to administratively close cases regardless of the reason for the request and indeed even if both parties agree they doing so do  disposition in those regulations and also because those regulations encourage i j's and the board to resolve questions in a timely manner but we think that argument fails on its own terms because it ministered of the closing a case on the front end can save years of litigation on the back end aliens who were eligible for provisional waivers like my client are a perfect example of this once the provisional waiver is approved all that is left for the immigration judge  is either grant voluntary departure or terminate proceedings once the alien returns as a lawful permanent resident but under a matter of castor tongue many aliens who would have otherwise applied for provisional waivers will instead will inevitably apply for forms of relief like asylum and cancellation of removal for which they will need to wait years to even receive a hearing and of course if those forms of relief are denied many of those aliens will then appeal to the b i a which itself is so  now takes more than a year after the notice of appeal is filed to simply receive a briefing schedule so simply because it ministry of closure results in a temporary suspension of the proceedings does not mean that it prolongs the overall length of the proceedings to the contrary it often saves i juz work because it allows them it allows aliens to pursue forms of relief that require little or no bench time to actually resolve now if there was any doubt that any action regulations conferred the authority to administer really close cases that doubt would be eliminated by the fact that other regulations not only reference administrative closure but require cases to be administratively closed in certain circumstances so to cite just one example eight argument either seems like to me it would be a rational argument in that case to say that the specific regulations are specific delegations of the authority of the attorney general to enter into administrative closure same thing with judicial settlements and that would be consistent with his view and castro tub i think that that argument might potentially have force if for example all of the regulatory provisions government was well i'll think they made that argument well the attorney general argued that the regulations that that reference administrative closure would be rendered us are perfectly if the immigration judges already had that authority but we think that that that simply non sequitur because i js could not be required to administratively close proceedings if they did not have a preexisting power to administratively close proceedings and with respect to the settlements i mean the governor our argument is that to the contrary your honor the attorney general said in matter of castor time and we don't disagree that immigration judges in the board can only exercise powers that are delegated to them in the regulations the settlements are of course not regulations themselves so the se s could not have been entered or validly entered were there not a preexisting regulatory basis for immigration judges and the board to administratively close cases that would be our position if the court does agree that the existing regulations take away the ability to administratively close cases but they would have to be published in the federal register and preceded by a comment period the attorney general appears as to suggest that matter of caster tom with a general statement of policy that is exempt from the notic comment requirements in the a p a but even if that claim was true it would be self defeating because general statements of policy don't carry the force of law and they must allow room for discretion in individual cases so if the attorney general  entitled to deference under either our or skidmore with respect to our deference we take the same position that the solicitor general recently took before the supreme court in which the attorney general does not dispute this case which is that a regulation and it and agencies interpretation of regulation is not eligible for our deference to the extent that it conflicts with a prior agency interpretation and that is precisely what we have here a matter of castra time overruled not only to it depends i would say if the court is prepared to rule in our favor under the plain language of the regulations then there would be no need to if the court thinks that the regulations are ambiguous then yes i think it would behoove the court to wait for kaiser to come out it will be out by the end of june of course  and if the court would like to solicit supplemental briefing after kaiser comes out we would be happy to provide that the as i was saying the government does not dispute that an interpretation is not entitled to our deference if it was inconsistent a prior interpretation they argue that matter of castra tom did not itself represent a change in policy because no prior attorney general had personally issued a decision authorizing administrative closure we think that's beside the point because board members are delegates of the attorney general and as such they speak for the attorney general that's why the respondent in this case is the attorney general and not the b i a so the agency in question for purposes of our deference is simply department of justice simply the department of justice and i don't think it can be disputed that matter caster tom represented a shift in policy if the court does not provide our deference the only remaining form of deference would be under skidmore  the government is not skid it does not cite skidmore or requested more deference in their briefs so our position would be that that that argument would be waived to the extent the court wishes to consider more deference we think it should not granted more deference not only because caster tom represented a change in agency policy but because the decision simply unpersuasive on its own terms so to begin with the attorney general did not provide any meaningful guidance for how immigration judges in the board should proceed in cases that would have previously been administered of the clothes all he said was that they can grant continuances instead while continuances may sometimes be an adequate substitute in many cases they are not so for example under d h s regulations aliens may and i think if a matter of castro time was upheld then the d h s s regulation question i think would almost certainly be struck down as arbitrary and capricious secondly in cases like matter vava teasy on the alien has a petition pending before us c i s the use of continuances can actually extend the time necessary to adjudicate the petition because the aliens file must be transferred back and forth between us c i s and ice before each year and as the court may it please the court rebecca hoffman phillips on behalf of the united states attorney general i want to point out that i made the arguments that your honor is saying the government did not make i made the argument if you look at page thirty in terms of as he quotes it ha s any action argument he actually refers to it as the any action argument because he reads it only as any action he's not reading the rest of the sentence and i point that out beginning on page thirty as far as whether i made the argument about specific  regulations meaning that it was only authorized in specific circumstances that's on page thirty six dollars of my brief in terms of the court's most recent question because i do want to just mention that because i'm probably not going to spend any more time on it since this decision issued ice ha filed approximately eight hundred and thirty motions to reopen based on caster tim and the but word has told me that it has granted but this doesn't count pending motions four thousand eight hundred and where there is fair warning to the people or in a duce affected by the regulation which apparently there would not have been here with castro and a determination that the interpretation is not inconsistent with the agency's previous views were just not disrupt settle the expectations based on agency acquiescence or contrary practice so if we reach that point government's position is actually quite consistent with kaiser which is we took a best reading approach of the regulations here and we're not actually st and foremost arguing any ambiguity whatsoever he's arguing actually that there are unambiguous in his favor the government says there unambiguous and the government's favor and the government's position is that the court should even reach our deference and also that skidmore actually doesn't apply to regulations i've i haven't found a case where skidmore skidmore goes hand in hand when chevron doesn't apply but under vermont yankee it's actually subject to vermont yankee standards where you're looking for constitutional and substantial and infringement on rights there you're not actually reviewing it under the proper lens in that respect because when you get to the actual substance of the decision when it's a procedural the courts are not free doing graft their ideas about efficiency for example he's arguing all these things about why he believes rather than what the attorney general has stated would be more efficient his believes about efficiency that's for the attorney general to decide the attorney general was free to use procedures that or not to use procedures that he believes are going to make things more efficient and as the attorney general that is absolutely his parag of and that's exactly what vermont yankee says the court is not entitled to step in and give its opinion and what he's asking the court to do is make some reasonable ness argument about what it means to be efficient here it's a procedural mechanism this is not substantive relief and there's actually no interpretation here as i mentioned it's just a plain reading of the regulations when read in their entirety and i direct you to page thirty five of my brief or i do a string site of all of the regulations when read in their context and their entirety speaks to disposition to prompt disposition to as soon as practicable timely manner these are all things if you're trying to abide by a regulatory mandate for adjudication you don't abide by it by not adjudicating and by just leaving cases in limbo this is what the attorney general recognized is that there is a regulatory remained eight here saying saying that this is a procedural rule like changing the number of days notice that you get for a hearing or your honor the reason why we argued it was mostly in response to whether you know if this court were to find going down his path of argument in his line of reasoning that's actually not the courts and the government's case in chief is i guess what i'm saying this is an alternative the alternative is that  court settlement and cited the general powers regs and said we're going to find authority here and created you know a rubric for giving administrative closure and until i've actually been no att to interpret the regulations whatsoever so when you talk about there's been some change there was no actual prior interpretation of the regulations there's no change when there's no analysis whatsoever there was no searching  expectation previously of administrative closure and why there should not be deference because the attorney general has decided that there is not is that is that just recited the factors of solicitor general told the spring court was  new our deference and these are the circumstances in which it should apply and it would seem on its face that in this circumstance less castro to will rule that they would that argument contradict the government's argument in this case i and the government doesn't believe that it does because there a fair warning that administrative closure was always a revokable procedural mackin to some it was always subject to not being available in any given case it could've been taken away at any time so this idea that there's an the right and so post caster tomb the attorney general wants different procedures followed for that so in other words what there is now is the ability for do you justify a motion to dism so in other words the way the prosecutorial discretion was being done was through this administrative closure mechanism that actually was never meant to be a tool that way of how d h s s exercises prosecutorial discretion the attorney general wants it to go back to following the regulations that have always been there which says that do you just can choose not to charge someone they can exercise p d that way or during the proceedings they can file a motion to dismiss and say that circumstances have changed and we now have new information about maybe eligibility for relief maybe some other collateral event going on and they can ask the i j a to dismiss the proceedings while they're ongoing or in removal order may issue and v h s can choose not to enforce the removal order such as in the case of t p s or dhaka or any other situation where in ministry of state a removal is filed and i want to i want to stand that for just a nd because the petitioner in my case he actually doesn't need administrative closure to seek the relief that he wants and i think that this is very critical here because he's so capable of seeking the exact form of relief that he wants even from abroad the other thing i want to mention is that when you have a removal order you can if he had still been in the u s he also could have sought administrate of closure by seeking an administrative stay of or move old to prevent his removal from the u s and by filing a form to twelve and if you look at the twenty eight jan that he filed and you look at the reason why his waiver was denied you'll see that it wasn't denied because of i've been closure it was denied because he had a removal order at that point and he needed to do something extra in additional now to seek the waiver but that's what it came down to a for my to twelve and if h to the rule making process of the a p a here well what the a g was doing was simply reviewing what the regulations stated and and what the law ends and basically he was allowed to simply tell his employees the board and the board members and the immigration judges that you know he was just looking at the statute and regulations he didn't find anything there that was giving them any authority that they were exercising and they ha sort of taken that authority upon themselves that never really existed so that the and this goes back to what you were saying about our there was never an existence of authority in the st place and there was no there was never an understanding that these it's and your honor if you're i think it seems to me that if you wanted to follow whatever is the decision that results from these arguments and litigation that you would probably have to wait for the decision to be decided in terms of you know just even if i said this is our position or not we don't know if that's the position that will be adopted by the supreme court and so if the concern is how do we apply our deference i would say we could do supplemental briefing if there's some specific new role or when you're looking at things here because from the government's position there has never been the authority and there was a practice that was never  substantiated by anything other than this assumption and that there was always a warning that this could be revoked and that this is a matter of procedure which puts it in a fundamentally different category than some other substantive relief and that's how the government would distinguish the situation here where you have warning that you can always never be entitled to administrative closure even if you have it it can be taken away at any point it can be taken away so it's just the same as if you thought there was authority in the regulations and then it gets taken away it was always of to be taken away that's how it was designed in the st place it was meant to be a temporary pause and i think this is the problem is that it morphed into something entirely different where all of a sudden you had immigration judges on the board unilaterally closing proceedings over the objection of d h os and you just waiver was created for people they deemed not going to make it is easy for him as he might want it to be he wants to stay here and be able to do all the adjustment here the d h s s had this waiver side and it did make administrators closure a prerequisite in the waiver as i mentioned you can have a removal order and still seek the waiver you can be removed and still seek the waiver it didn't take away any form of substantive relief that isn't still available to him it just wasn't as convenient for him he committed a dui conviction the d made a decision in that regard this is this is sort of why his position that the court should somehow order him back order administrative closure i mean it's it's just kind of so far and beyond what the what his remedies are basically in this situation what you have here is the attorney general as the ultimate authority over his own regulations and i would say that because it's the attorney general you know the congress specifically delegated the authority to him he has the authority to fashion his own immigration courts in the way that he sees fit he runs the immigration courts he gets all timid deference not some sort of diminished deference as i mentioned the deference is not diminish any way because it's the attorney general versus the board he is the ultimate authority on how to run his immigration courts and i think that with when it comes down to deference to him i mean it's that most when he's dealing with a procedural issue as i mentioned they're basically administrative closure you know always same so much time i think i meant i actually mentioned that with the efficiency part of the argument that it's not really up to him to decide what's  basically the attorney general you know didn't have to abide by the notice and comment as i mentioned because when you're reading the plain language of the regulations and you're just finding nothing they are you're basically just telling your employees what to do  and that's the employer employee relationship the board had to abide by the attorney general's decision when it decided to grant the d h s s motion to reconsider and i want to go back because this was in the context of a motion to reconsider s and so the board could not have abused its discretion and really in terms of what the court is actually reviewing this case st and foremost is about whether the board abused its discretion in following an attorney general presidential decision the board had no choice essentially but to say this is binding authority upon us and wasn't arbitrary for the board to apply that precedent to this case and so basically once you general found that these other mechanisms like continuances and all those other forms could possibly be more effective and efficient in running his immigration courts was to the court have any other questions that i say that i didn't address a best reading approach here and is not actually asking for deference when it comes to the regulations and that nothing was violated by the regulations when the attorney general decides to change the procedures of the immigration courts five that the any action regulation with respect to the board grants the board the discretion to take actions consistent with reviewing appeals such as deciding questions not expressly raised excepting untimely briefs and correcting obvious omissions in an immigration judge's order now there is actually a separate reg that authorizes the board to accept in town the briefs but the other two examples there are no specific regs that that authorize the board to do that so so the all mechanism that i would argue are distinct that is distinct from the authority provided by for example the necessary and proper cause in the constitution where the word has to be tied to an enumerated power to address a few other points  the issue in this case is not whether the board abused its discretion committed an abuse of discretion in granting the motion reconsider the issue is simply whether a matter of caster tom was wrongly decided with respect to skidmore skidmore does apply to regulations i am not sure the government would argue to the contrary since it would help them of the supreme court so held that in christopher reverses smith kline beecham court that cited on page one of our opening brief with respect to the question about whether petitioner can seek the same relief from abroad yes he can seek an immigrant visa from abroad but the point is he would be abroad and he would also have to end it for you know potentially a few years as opposed to being in the united states so the fact that he is abroad is part of closure typically do you just would have to present a persuasive reason for the case to be restored to so it isn't something that could simply be taken away as a matter of rant of whim with respect to picking up where i left off with respect to skidmore deference  and why continuances are not always an adequate substitute under the regs only immigration judges can grant continuances the board cannot so continuances are simply of no use in cases that all are already at the board if that event occurred while the case was at the board that would have previously warranted it ministry of closure then the most the board could do would be to remand the case back to the immigration judge to consider whether to grant a continuance and then if the immigration judge a continuance that decision could itself it could itself be appealed back to the board and then the case would be simply back where it started and then a final reason why why it does not deserve to give more deference is that the attorney general failed to consider any alternatives to cure the perceived abuses with administrative closure so for instance he could have instructed immigration judges to require parties to file status reports or case what's going to sort of close or it could require the party requesting a mini of closure to file a motion to recal and or within a certain period of time after the underlying event or action had transpired or you could have allowed immigration judges to recalibrate cases on their own motion so the fact that the attorney general did not even consider possible ways to fix the problems that he perceived suggest that he was intending to throw the baby out with the bathwater now if the court does rule in our favor our final request is that its decision include two instructions to the government st the court should either o r the court to administer to the close the proceedings on remand or to simply make clear that petitioners case will remain administratively closed as a result of the remain and either way the court placed my client in the same position that he was in after the board will decision but before the board granted d j s his motion to reconsider the h s of course would be free to file a motion to reinstate the appeal at any time but that that motion would be subject to the standard i referenced earlier they would have to provide a persuasive reason for the court application for a provisional waiver because he has since become subject to a final order that decision is not subject to being appealed or reopened so because there is no right to do so my client would be required to file an altogether new application to a provisional waiver an alien's must be physically present in this country when they file the application in order to qualify for a provisional waiver so unless my client is returned to this country he would be unable to pursue a provisional waiver even if the court rules in his favor the court has any furthe