was the court my name is douglas to nelson on behalf of the petitioner the government believes that it has a valid order of removal order importation against the petitioner however my question to the government counsel is to what military said that he should suffice for them and he refused to do so so for the government to take the position that the root petition was to be ordered deported to lebanon on flies in the face of all refugee and asylum law and we're supposed to protect these persons now of course the board's order has no legal the fact because that last jurisdiction to make that decision and the court when it made or when the board made that decision it did not know that the petitioner had departed the united states but the facts are still the facts and the government cannot dispute the fact that the board found he had a well founded fear of returning to his country when we believe the solution i in his first appeal they found two strange findings i mean they simply don't go together first they found that he deserved a new full and fair hearing because there were translation problem but they also had an alternate order know the judge's order it was simple the immigration judge's order was i grant you four months of voluntary departure and in the alternate if you don't comply with a voluntary departure you'll be ordered deported now we know it was the professionals that the voluntary departure is automatically told during the pendency of an appeal with the board of immigration appeals but for the petitioner to know that being a lay person i think is beyond him  but it's something common among practitioners and in fact that's our producer position that the voluntary departure order was automatically told by virtue of filing the appeal and that it exist now the government's position is that after the judge's order four months expired during the appeal and that the petitioner lost his voluntary departure his his privilege of voluntary departure that that privilege until the board issues an order granting relief or remained in the case or granted another period of voluntary departure our position is that that voluntary departure which was told did not disappear in fact for it to disappear flies in the face of the definition of what tolling means the voluntary departure order existed throughout the appeal and when he left he was still under that voluntary departure order now there's a mechanism to stop aliens from abusing that automatic tolling is an alien files a non meritorious appeal solely for the sake of extending his time here then that is obviously in violation of the law and they're not entitled to the privilege of voluntary departure but in this case the petitioner had a meritorious appeal as evidenced by the fact that the board granted his appeal  fortunate fact is that he had left the country in the interim and that was his mistake but what the law says is that that was a voluntary departure now he reenter the united states illegally those former proceedings are done with and everything nearly everything that's been done since then has the legal effect what the board or what we want from the government is for the department of homeland security to issue a new notice to appear based upon his last illegal entry that would afford him a full fair and new hearing on his asylum claim that would also afford him an opportunity to present his adjustment of status application but of course this court does not have the authority to order the department of homeland security issue a nose to appear but it is our position that by merely finding that that if this court merely finds that he me reinstate the prior move order or and they issue a new notice to appear it's done nothing here yet so it doesn't matter what the sports do you just still has to take some sort of action and until d h just takes that action there's of questioning that there is absolutely in the regulations if it were to be reinstated he would have the opportunity to raise any sort of claims of persecution raise anything that that is available to him under reinstatement that's between yesterday and today floating in limbo land at this point valid or is being appealed that's also an interesting question that was the subject of debate among in our office because to some extent that two thousand and four the i a e a decision which purportedly would know if we agree with you that it doesn't really matter we're still left with an order that says he's supposed to be deported to lebanon we're left with a lawyer before us for the government who says no he's not going to be deported here are all in agreement about where this case is going to go and the question is what do we need to do to make that happen and i can't i agree with judge wardlaw seems to me that the thing to do is to reverse the  order that we believe everybody i think believe has some error in it and proceed with the interview either based on those of a parent to appear or reinstatement and get about the business o along i don't know how much my phone call is going to help that matter but i'm i'm perfectly willing to make sure that this doesn't take fourteen years to to get to this court again if you know if everything doesn't go m instead of a reinstatement and i'm perfectly happy to follow up with that and make that call but it doesn't affect what's what's going on here it's a completely separate matter and he just isn't going to take any sort of action while reinstatement of removal but to your question he is free right now the previous position by the d h s was they have a final order of removal and they were not going to release him it's only because of overcrowding that he was released so they can