proceed with the day calendar of hers cases by as recessions good morning honors my name is joshua barr david attorney for petitioner mr bias at the outset i would like to maybe make this court's job a little bit easier i have reviewed the court's most recent decision in  sessions that was handed down on march twenty ninth i do concede that in fact that forecloses argument relating to an aggravated felony and renders argument relating to the flutie doctrine moot based on this decision we will not be arguing those issues anymore because that is a presidential decision and i do believe it forecloses those arguments however it does not foreclose the law of the case doctrine in the last years arguments which i would like to focus my arguments on the the re was a stipulation negotiated between the parties and agreed to between the parties and accepted expressly on the record as binding on the parties by the immigration judge that the department would not assert the statutory bar to mr baez's eligibility for cancellation of removal that became the law of the case as a result proceedings continued for over two years a hearing was held and it was only at the time that the judge was ready to render a decision that the department chose without explanation to change its mind with respect to that stipulation that had already been accepted the agency first why do you call this a stipulation and it seemed like a rather more informal statement there's no written stipulation is nothing called the stipulation the judge just says i think people who read and i think people are in agreement about a question of law and there are different strains dippy elation and we will not make this argument and well i suppose that's right on the law i know you want to because this was not a legal determination by the department this was a prosecutorial discretion determination that was discussed off the record between us and why is that with some consideration given for it and if the government decides that it's not going to raise something and then later changes its mind at least in the absence of some kind of prejudice what you eat pretty well first of all you're arguing that that is binding and irrevocable regardless of prejudice or are you arguing that there is some prejudice that ensued well your honor for the prejudice prong is not applicable to the law the case that's applicable to latches and i'm happy to address that but with was there or was there a judicial decision that you are wrong on here yes your honor the judge's expressed statement on the record that she accepts that the department would not be raising that issue and that he remains law isn't the co legal determination that based on the fact of the apartment was not raising one of the issues that he was legally along as it's not being raised he's eligible and that was an agreement stipulated to by the parties and accepted by the judge but if if then if then it is raised he's no longer eligible at least if it's raised persuasively you know what what the agency said was the reason that the judge was able to accept the department's change in its mind was to quote correctly error but the exercise of a prosecutorial the discretion discretionary decision is not a legal error that is a exercise of discretion reached between the parties in an agreement accepted by the judge which is the reason why the case proceeded for the next two and a half years  he citation to authority that supports position today that well the the response to that your honor would be that because the department or the the agency said that it was correcting legal error when in fact it was not legal heir and the unique but the standard law of the case doctrine in the long case law as the board said was that they could ricin or overturn of the law of the case where there it is to correct legal error but it's our position that this was not legal error that this was a determination reached as a matter of prosecutorial discretion then how can it be love the case if it's a decision is a matter of prosecutorial discretion it's not law at all it's not law of the case it's not a judicial decision and the question just becomes if the government represents during early in litigation that it's not going to raise a certain argument and then later it gives notice that it's changed its mind and i'm going to raise the argument at least in the absence of some prejudice like well you've spun this on me at the last minute i'm not prepared to respond to the argument that you're now making because i think that you're going to make it at least in the absence of that kind of prejudice why i understand why the government can change its mind or why that's going through the law of the case first with respect to the law of the case because it became a legal determination that he was statutorily eligible for cancellation he relied on the legal determination that legal well there's several responses to that you know the first is that he proceeded with the understanding that he would be eligible had he been informed at an early stage in the proceeding rather than actually literally at the day the judges issue in decision the department changed mind he could have done various things such as seeking to vacate the conviction that might have made him statutorily ineligible those were not pursued because he presumed he was statutorily eligible based upon the judge was there an argument then made to the judge wait judge  they just changed their minds now we should get an opportunity to go back and try to vacate the conviction as we would have done if we had known a year ago that this was going to happen there was an argument presented to the judge that the the the department's sudden change in mind at the date of the decision was certainly prejudicial to the respondent and or to mr baez the respondent below you know i mean that that that could be cured right if the judge said assume for the moment that we would think that that is the  prejudice that he could have gone back and sought to vacate the conviction that could be cured right if that application was made to the judge i want time now to go back and do that because it's not fair to let the case go forward so i need a continuance as you know that's a different argument than the argument hold them to this forever because it was really a good deal that he offered me a really good is advantageous to us that he did that so don't pull the rug out from under us that's a different i think that was the step you could have taken to cure the prejudice there was the fact that the judge found no prejudice renders that issue moot i mean that the the issue of prejudice that it was highly prejudicial and further the argument that this was a like right or a public benefit there was no argument that mr baez presents a danger to community and that he needed to be deported the only argument that was presented was that they had changed their mind there was no specific  argument with respect to that the department asserted why this would be why this exercise of prosecutorial discretion would be so great just that it would need to the public right but he had at least three prior convictions it looks like for maybe like is not relevant that that certainly is relevant but it was never argued that he remains a danger to the community i believe that his most recent conviction dated back to one thousand nine hundred nine why isn't it just a public benefit to enforce the law government when the government is trying to enforce the law and i don't and frankly this guy is he's obviously a enormous danger to the community has three convictions which he got total of fifteen days in jail and a fifty dollar fine none of which occurred in this millennium  so i think the government would have a pretty hard in saying this is a danger to the community in some affirmative way but is it why isn't it always a public benefit when the government  accusing someone of a legal violation and trying to enforce the law that's because it's undermining the government's ability to exercise its prosecutorial discretion to reach stipulations that are there for accepted by the court it's the official administration of justice that is also being undermined and that may please the court i'm jonathan robbins here on behalf of the respondent the attorney general good morning to all of you in light of the concessions i won't discuss anything about the aggravated felony conviction or the flu doctrine since it appears that all the parties are now in agreement on that which leaves us with of course  the doctor of lashes and one question not about the merits of those issues which have been withdrawn but about the government's briefing and i realize it's not your brief i don't think i've ever seen a position taken by any lawyer  in brief to this court that i'm just not going to address one of the other side's arguments but if you'd like me to let me submit a supplemental brief on it that struck me as peculiar well i think the i mean you can either waive it or you can say it's not worthy of a response or you can make a response but i'm not sure what what it means to say i'm not going to address it but i will if the court invites me and then in that case i want the right to submit a belated supplemental brief that might mean more pages than you know it just seems like a very peculiar thing to do i think it could be considered peculiar although the way i read the brief they were relying mostly three of the record here's exactly what the judge says he said we're back on the record it seems that everyone is in agreement at least with respect to the fact that the respawn can proceed with a cancellation application with respect to lodge charge and if cancellation is granted and it results in admission of the respondent the united states w ill at some point later if that occurs have to resolve the issue of whether there is any relief with respect to an earlier conviction so it seems to me based on the language of the expressly reserving the issue of whether or not the conviction is going to affect his eligibility for relief so this is not a ruling by the i j a that he's statutorily eligible for cancellation of removal now i'll grant you that it seems a little bit odd to proceed on a discretionary issue with respect to cancellation without first addressing the statutory eligibility stipulation in d h as to that effect the i g is responsible and tasked with applying the correct law which is what and in fact in the law that says when an i j has a cogent and compelling reason to depart from law the case even if you were to assume this was type some type of ruling one of the cogent compelling reasons is the need to correct a clear error of law would change wanted to change their mind well it's very difficult to tell from this record your honor everything that they discussed with this was i don't specifically know i was the attorney down below but at the end of the discretionary hearing the i g did ask the parties about what was going on the conviction and gave the parties an opportunity to respond and at that point v h s in it response said that it was legal that its prior stipulation was legal heir so they seemed to be conceding that they made a mistake at least based on what they filed i don't know if that's the case i mean i'm not sure if there was some sort of off the record agreement that they would agree not to not to raise the issue of statutory it's just not in the record but all i can go with is based on what the law says here and the law says that this is not a ruling by the i j a so law the case doesn't apply and even if this was somehow considered a ruling they there was this was would have been a clear legal error such that that's a cogent and compelling reason for the i g to depart from any stipulation by just seems unfair or may not be prejudicial but it seems it's unfair to represent that we're not going to consider their conviction and change later on in the proceedings well not it could potentially be unfair but i don't we don't really know if it is or not because i don't know what the we don't have anything on the record as to what stipulation may be maybe there were there was an agreement and petitioner didn't abide by his part of the did not it's not quite clear because we don't have anything on the record it was everything was off the record in that regard tensional be unfair would be unfair because prejudice right and this is a very easy case of no prejudice because at the end of the day what we're talking about is a legal classification the new york statute is whether or not it's an aggravated felony is a legal classification there's no witness petitioner could present there's no evidence he could he could present a trial that's going to render this statute not to be an aggravated felony in other words it's purely a legal a legal matter so the notion and the notion that he didn't have an opportunity to respond is just simply not true he did actually file response where he had an opportunity to argue that this was an aggravated felony he didn't do that he rested  rebuttal briefly writers just to give a understanding of where the prejudice actually does lie it's well established that an individual cannot seek simultaneously to twelve c former two twelve c relief which existed prior to the change in law the ira intent was that the judge would decide the cancellation of removal application if that was granted then the department in its prosecutorial discretion could decide whether or not to bring a charge based on the earlier arrest which is classified as an aggravated felony where he would then need to seek independent to twelve c relief having already addressed the cancellation of removal application so basically what the court what the department was doing was given an opportunity to seek one relief if granted then separately secrecy relief because the law said he couldn't seek them both at the same time when they changed their mind and withdrew their promise not to seek relief a then you could pursue relief be right correct but i'm still having trouble understanding the prejudice and i realize it's psychologically prejudicial to think you're going to get something and then the government says they're not going to legally speaking what you just said was well because he was pursuing this really he wasn't pursuing some other form of relief right and the response to that your honor first would be what i said before which is that prejudice is not a requirement for law of the case in order for an exception to the law it is alleges it is for latches but we're dealing with law of the case what's required is clear legal error and there is no legal error in the department exercising pros discretion that is not a legal error and since the judge accepted on the record the agreement that the department would not raise that bar that constituted law of the case and therefore cannot be said to be clear legal error in the exercise