to counsel in reasonable fear proceedings a language in that sentence of the court's opinion is not qualified and nd i think it's important to look at the overall context of that case the government in that case made these very no longer have access to seeing the time clock so if i may ask judge callahan to be easy presider for before that that will be very  i'll try to remind you on that just because we we have a little bit of a challenge on that end judge graber i know it's a little hard to know when it's like doing double digits double dutch jump rope when you can jump itself refused to prof the government's argument is that you can infer from the fact that there is no right to counsel and reinstatement but there's also no right to counsel and reinstatement proceedings should be a reasonable fear proceedings that  reasonable fair but i don't think it's exactly answered that question in the same way so let me ask you this when you have someone that's already been removed and should people that have been previously removed have had their feet in the exact same position as someone that comes in for the st time and you know that you have these people that thought perhaps a b would be in a different position of course we even if you think that zuniga only applies and i'll assume for purposes of this question as you go only applies to those in administrative removal the factual landscape you describe is no longer accurate because we know that similarly situated individuals that is people who are part of the screening process that is a predicate principle withholding proceedings already have a right to counsel that zuni the question then becomes not we're not asking for an exception to the general rule we're asking for it to be treated the same as those who already have that right and who the same regulation applies to right those administrative removal and those in reinstatement proceeding related to whether a person will be removed or not given their allegation of reasonable fear does it matter do we have to even get to what the regulations this or how it applies there is a secondary argument your honor governing the regulation in its proper interpretations geneva said that the regulatory filings cannot be interpreted to confer discretion so i think the argument edge for someone to bring counsel and any removal proceedings why does a regulation matter why do we have to even get to the but that is a fair question and so let me try to address it head on under i think the question is five these very proceedings are described as a form of removal proceedings albeit streamlined removal proceedings but that's the government's own words but let's put that aside what the government ascribe them and let's look at is there a test perhaps you're the wrong person to ask this question of but you mentioned that your colleagues with me talking about the particulars of their clients cases but if we were to agree with you that the statute grants the privilege of counsel to  these individuals we would wouldn't we just send everything back because start over with counsel and why did the individual circumstances matter in that iran's i don't want to step on my colleagues chose but i will answer the question to this extent your honor in mr rose a look at the question the case there are no other arguments so yes the answer would be a right whether it's a statutory right or whatever but then you have to happen within ten days so if we created as a statutory rights then what i'm seeing here is that are all blows because then  if you have a right to counsel there but then the person wants a continuance in the whole thing and so then you can spend six months continuing that part of it before you even get to the next part of it so how does that all synchronized together i mean  ride could i ask a question here but i'm sure when when that person was told they have a right to counsel and made an arrangement apparently with counsel and counsel didn't show us why i it's the government's problem in other words there's a privilege to have counsel at your own expense and if you have a problem because you're the lawyer doesn't show up even though you have gone and made the arrangement  s you know what why why is there more because it isn't a right as in a criminal proceeding it's a privilege at your own expense to get a lawyer right of and so he's not he hasn't prepared to represent him so we're not asking for doubling the time or giving the same amount of time but the immigration judge does have to take some steps to figure out and according to this court case law to figure out why make sure stop the clock but either my colleagues have any questions that they would like to ask of this boy or not at the moment thank you all right thank you jim let me ask you one thing ok we're ready ok good morning your honor sam plays the court my name is jesse carlson i represent the government in this case and i'm available to discuss the general right to counsel issues i think we've agreed that will do that for about twenty minutes and my colleagues are available to discuss specific factual issues related to the myrtle case and shot that the stroke this is available d for the myrtle case and miss channel areas available for there's clearly been a proceeding before name a gratian judge so the only question is whether the broad term any removal proceeding apply and if i understand it the government's position is that seem to cover it in my view because when move all is broader then removable which describes only the person's status so why isn't the broad term in any removal proceeding one that covers anything related to remove all including an exception to remove ability or relief from remove ability well your honor i have a couple points in response to your or anything of that sort it's actually only a proceeding to determine whether there are sufficient fasts toward an application and a hearing on these claims for protection and what's holding the removal so it's not even a it not directed at whether they're actually eligible it's only whether they can even advance an application so i think that is a big distinction from a regular or what we would call a traditional removal proceedings or even the withholding only for setting up follows the screening me i can't think of something right off the top of my head but i could certainly try to get back to you d in response to that question but i think the nd point about this that these particular cases is that they involve the reinstatement of the removal order so these individuals have already b determines their actual you know whether they've actually proven that they should be afforded that kind of protection or withholding from of removal so it's your argument basically because you've already been removed and some of the individual statute that congress enacted makes very clear that these individuals should be treated differently and that is why under the reinstatement statute they are not allowed in there generally it's a very strict statute they're generally not allowed to have any additional  recourse except for this is this situation the reasonable fear proceedings is something that is done to comply with our international agreements and so that those regulations were enacted after the statute that clearly precluded really any other kind of relief for these individuals because of their receipt of this nature because they've already been ordered removed they've they've actually you know how did the law and come back to fight that removal that already took place that is very different than the contest address by this court in the nick of where there was you know there was actually a statute statute that addressed that situation those individuals had not been ordered d removed there aggravated felons and there are abbreviated procedures for them under that statute but that statute clearly provided a right to counsel and that is what the panel decided in tunica in this case congress did not afford these individuals any rights to statutory right to counsel in the statute and  because we have a situation where there are two different individuals are not similarly situated d d in the sense that they d they are in different they are different postures because you've got one invented a well if i have to use it true but there's that far and there's a reason for that the reason is because there is no statutory right provided under the reinstatement statute and because these individuals have been fast and ordered removed previously they are standing in a different set of shoes so to speak th not the usual way of doing things clearly i understand the concern your honor however these are not these individuals are not in the same posture coming into these proceedings so while they certainly reasons now if someone even ok morale was talked about you don't you don't have a right to counsel at the reinstatement part of this but if you show up with a lawyer that you wouldn't turn you wouldn't turn out a way they can have a way and there isn't wrong so the i j has very broad discretion in these proceedings and the regulations d specifically designed it that way the i j a can you know there is  they can be permissive in that regard so if somebody brings a lawyer i think it's highly unlikely that an i j would turn that attorney away there would have to be some really significant reason that would probably not pertain to the non citizen but you know if some of the lawyer had done something really a gracious that i thought i would be a very unusual situation that that would happen so there is discretion that i judge does have that discretion but the discretion does not equate is there still not a statutory  there that you want to relate to the court so i'm trying to i'm just trying to look at this from a practical as well saying the status of people that have already been re been may have been removed more than one time and have their due process then you are treating them as a different status is something that's coming for the st time and you said that that the statute that the scheme by congress allows that issues can be accommodated you have the privilege to bring a lawyer and you need to know grass but you also need to know that this is going to have been found and if you can't find one maybe that's your problem mark but th discussed previously there is discussion the idea does have discretion i don't think any of the non citizens in any of the cases we're discussing actually were denied you know asked for counsel during the referral to ribs legal proceeding and were told that they couldn't initially to locate counsel and i think still ended up coming to the proceeding without counsel so you know these particular situations you know specifically are not situations where you know the i just said you can't have somebody here certainly there were some issues with the timing i think at least in one of the cases but you know that they were you know i think it's unlikely that if somebody says they want to bring somebody that's going to be turned down however that  only referred to remove ability it would be completely unnecessary well your honor it's not just about i mean i would say it's you know room ability is a big part but it's also the kind of proceeding that's being provided i will go back again to the fact going back to judge i think it was just how his question of my foden counsel i can't envision a way in which prejudice could be shown in this case because there was no challenge to the factual prerequisites for  than what even a regulation provides for and i would argue that it's sufficient process constitutionally that you understand the what is going on and the evidence in this case plainly shows notwithstanding counsel spending from a statute i think just telling your point about the ten day guideline is really instructive here because mr rule had already been afforded three times the amount of time he was afforded a three week continuance on top obligations do you disagree that there are cases saying that there are such a geisha i wouldn't disagree that there are cases in other circumstances i'm not familiar with one that would be directly on point of  circumstance certainly this court could extrapolate from those other circumstances i'm not saying that the court couldn't but but specifically in this you know the unique circumstances that are presented here and the unique tensions between the the ten day rule and indeed be superfluous because i stated previously all from the prerequisites had already been established and the only information of the departure verification would would give the agency had already been established that mr mertle had accident united states  of his claim asserted that he was part of a shootout with gang members that were wearing police uniforms and used police badges in order to enter into residential complex and that was sort of what  counsel seem to indicate that the these people that do these reasonable fear are on the screen are just very not they're just really they don't really know what they're doing and they're not lawyers or they're not you know that so transcript where by word for the question it was a four hour interview and i would actually argue that asylum officers are very well trained and they know exactly what they're doing and how do i value in these claims and how to let the testimony from the alien so that they can where congress has yesterday's decision and over and over and said and acted in another statute that explicitly walk back this limitations and call thirty one a five so i would urge the court take a look at that there are dual purposes here and it in light of the ten day requirement and i think because i didn't hear an answer from the government about that freight of horribles and i think it's important to stress the ten day requirement with respect to the i j a is the same as the ten day requirement record and she did or anyone else that thinks they have time on the clock it's been a little bit complicated regulating according to my review i think we've covered every one