ages twelve ten and seven she was issued an expedited removal order in two thousand when she was just twenty one years old and she's resided in the u s since she immediately came back now for more than sixteen years she has no criminal history and despite now having been issued two orders of removal she has never appeared before an immigration judge or had the right to under the statute she has substantial equities in her case but has never been able to submit them before a judge in two thousand and nine petitioner was issued an order of reinstatement of removal by the h s and that is what she challenges today before this court the court decision in be and we are no makes clear that the court has jurisdiction to review the reinstatement order and she present that now in the court should grant this petition for review for four reasons first the two thousand and nine reinstatement order was issued prematurely petitioners application for adjustment of status and her eye to twelve waiver were denied that just having a legal proceeding doesn't give you a right to stay in the country is not an automatic stay every moment no of course not your honor but it's relevant to the amount of time she had nine and a half years at the time of the reinstatement order she filed an appeal at the ten year mark she's eligible for can that at that point she had she been put into proceedings before a judge she could have applied for a waiver and so it's really important when the v h f is considering discretion whether it considers to put her in proceedings or to issue a reinstatement if he eligible for three three four fed thirty one twenty one so if at and again the laws are different after duran gonzales but at that time if the adjustment was filed without an eye to twelve then the adjustment would be denied now in this case what happened was she went to the interview she didn't understand that she had been ordered deported because she never saw a judge so she learned at the adjustment interview that she had been deported and then her attorney filed the i two twelve waiver how do you mean she never knew she'd been deported because for somebody who's twenty one years old who goes to the border is given a document in english that she doesn't understand she didn't understand that she was ordered deported and turned away she knew she'd be turned away but in the country sure but before i actually hadn't seen a judge didn't application and the irony being had she done that she would have been a duran gonzales class member unfortunately since she didn't know just as actual knowledge that she had been deported the eye to twelve wasn't filed until after durand and solace came down in two thousand and seven gonzales she was according to the cards case law on notice of the change a law in the eye to twelve was too late so what should have happened is that she should have filed it with the adjustment and then she would have been in the durans all this class and would be eligible for adjustment of clear that a reinstatement order can be issued if the eye to twelve was pending and the court's decision in ahmed versus holder which is five sixty nine said third one thousand nine there says that there can't be a removal order entered prior order that current's with the section unless and until a final decision to deny the application for adjustment has been made is are you relying on that or are you relying on case law to say there was an error i'm relying on terrorism solace which is the law and you're not relying on the regulation and the regulation which paris gonzales cite to two twelve point two that's the regulation into twelve point two eight says there's an appeal as of right that has to be filed with the within thirty days so she filed a application for permission to reapply for it as soon yes so that what you're saying can be appealed i thought it was the application itself no if you're correct it's the it's the application for the waiver is what we call the for my to twelve their application for permission to apply and that was in two thousand and eight which again was after the duran gonzales decision but the portion of paris gonzales that says that there can't be a your and maybe talk a little slower and just walk me through procedurally what happened so she filed an application to adjust status and a and i to twelve application for two to twelve point two eight which is the right to appeal the i to twelve and then the one o three point we so you're saying eleven eleven eighty two no no no got it thank you and just for that to follow up on the time line so she was denied on six twenty four zero nine the reinstatement was issued seven nine zero nine and the deadline and it was so why do we remember something they could do already because here's the problem your honor when they do that now and that's what happened here they just say denied and so we're dealing with different offices of the h s this is the bakersfield office we don't know if they deny because they don't believe they have discretion because they believe reinstatement is mandatory or we don't know if they denied it because they don't believe discretion is warranted there was a companion case that was set for today cortez lopez versus lynch where exactly that happened where they did cancel the reinstatement order and issued a notice to appear that it happened that was the los angeles office these offices are all different and so when you're dealing with them on the ground and specifically in this case i've been in the case from day one she was she did an instant when she was arrested and detained i tried to talk them out of that and they told me it was mandatory none of that's on the record and i understand that's the point is that we really want them to go back look at the more memo consider the equities in the case she's been here sixteen years she has no criminal good morning your honour's may please the court lindsay murphy on behalf of the attorney general your honors congress has strictly limited what process is due to a petition or who is subject to a range reinstated order of removal here the scope of the court's scope of review in any reinstatement case is limited to three factual predicates none of which the petitioner challenges here instead she mounted unreviewable challenge to isis discretionary determination to reinstate her prior removal order rather than issue a notice to appear in her case nothing in the i n a or the regulations entitles judicial review of ice is discretionary determination and of course to deny the petition what it is is a discretionary determination has the ability discretionary germination yes your honor in that manifested and in all as an officer of the court i'm here to assure you that there has been a discretionary determination it and in fact ice has been at each stage of the process has has looked at this case as is recently as last week i was in communication with the local ice office some context to the exercise of discretion i mean i suppose that they could do so your honor but problem is this this is not an isolated case there are there are many many reinstatement cases that the government issues each year and to require the to require the that the exercise of prosecutorial discretion by no forcing agency is not one that is is particularly amenable to judicial review it would certainly have an enormous chilling effect on the agency's ability to conduct its review of its own resources and how it wants to proceed forward in a touchett has expressed to the court they do have these in mind and in fact that i and counsel who drafted the brief ensure that i was aware of these equities but it's ultimately isis determination to decide whether or reinstating her order before allowing her time to appeal no your honor and there's nothing in the irony or the regulations or case law that that supports the position that ice prematurely reinstated her order acted within within the bounds of the regulations for reinstatement as she has a right to appeal the denial she does there anything that requires the the reinstatement order not to be issued while she's appealing with an aisle of the the form case from outside the country or honor it with respect to the waiver denial and i think that's all all said and done and the petitioners conceded that she's not eligible but she did have an opportunity to appeal that appeal was fully adjudicated and there's there's really no reason here  pending and if the court has no further questions will submit thank you very much i give you you just to clarify the appeal wasn't adjudicated at least we didn't get a decision i do understand that after the created a policy of decision it couldn't be granted but there was no actual decision that was issued going back to the ahmed decision the crux of the ahmed case was that the petitioner had an admission of appeal pending and was ordered removed by the judge and he appealed that to the board which went to this court he had requested a continuance and that was  but he the removal order was vacated because there was no continuance granted because the administrative appeal was pending is opposing counsel correct that there is no rule that precludes reinstating the prior order while plus the regulation that says you have an a right to appeal have a right to appeal but that doesn't say that you have a right not to have a reinstatement order issued specially if you could pursue the appeal from outside the country do you disagree that you could pursue the people from outside the country right so if she leaves she's barred for at this point at least ten years likely twenty so she can't even seek a waiver you can if you can pursue an admission of appeal to the halo outside the u s but by departing she triggers an additional bar so you know if she leaves and she's out for a minimum of ten years potentially twenty she's got to removal orders now so she's likely out for at least twenty years so that's not really an option given her i mean she's got these young kids the last thing just on the issue of discretion i wanted to mention to the court just that obviously the general concept that when an agency has discretionary authority that it has to provide a clear reason counsel says that the supreme court has indicated a court should not review an exercise of prosecutorial discretion do you disagree with that and has there cases supporting well it's you know there there's a problem  twelve fifty two g b of the statute which is a limitation what the court can review is the process i think if we had a decision here that said here's all of the equities u s citizen children spouse sixteen years no crimes but she knows exactly or honor the supreme court's case and meld n l r b versus metro life which is from one hundred sixty five just generally states that when an agency is afforded discretion by congress it must disclose the basis of its order and but there is you know there's discretion in every step of the way that's what the martin memo is a barrel so everyone does you invite a process where why the court is going to have presented to it the question of whether or not the agency properly exercise discretion in the whole point of giving the discretion of the first places to keep the authority within the agency not giving it over to the court right but that i find that perverse but that's what we do with that what you do with the board also write the board how that discretion you just need to make s e if they make the discretionary decision for example that there's not extraordinary hardship in a cancellation of removal case there's nothing more for us to say or do right but if they didn't review the evidence or they violated the law then there is because that comes with