to address two issues second would be as a victim of domestic violence which the government was well aware prior to the reinstatement of the order the petitioner was entitle to a statutory exception and the government should have considered his statements  r two forty one and as he was entitled to protection under the savings clause of the i a e a has a domestic violence victim garcia the ring tone which is so two thousand and eight case from this court seems to me to state that the only possible reasons to alter an expedited removal order are the ones that are in the statute there are three reasons and this isn't honor so turning to the balance you under section two twelve eighty nine c it specifically provides a waiver the secretary of homeland security may waive the application of class one in the case of an well they reinstated the order and i position would be that until the valid case is completely adjudicated then he they should have not reinstated the order given that he was entitled to that exception well i mean he he made his pitch about why he should get the relief in the and the agency and that is currently your honor that's currently pending before the district court the government has continuously that discretion is a heightened discretion in which four or four of the spectrum specifically has this was they went back and they revise the statute specifically to protect the dems who were afraid to come forward who might have and deported or had an issue criminally because of the domestic violence and they specifically set up a statute in which there would be a waiver from this type of condiment but he he said entitle to deference well first of all that's still being adjudicated because he's intitled to the agency review before the district court and one of the issues that the district court brought out is that that stops you specifically provides for extenuating circumstances when the conviction is related to the abuses self and given the widespread evidence from the doctor the teacher the family court which ordered supervised visits for mom given the numerous letters from her saying that she had the faults allegations and the fact that we went into court to have the conviction reversed the district court did it at least in our initial conference should not be seen very persuaded by the fact that the government has refused to in fact acknowledge there's extenuating circumstances adjudicate the reasoning behind that order but they can under several case law have limited in fact this court in smith just recently questioned what it said that there was some sort of limited jurisdiction and in footnote six they said that they order is very concerning in fact it is also then the subject of much what if in love as man against you johnson which is a district court case there was a large class action  typical conduct in southern california to either coerce voluntary departure orders to illegally send people out very quickly from southern california into mexico and given that this is his statement in what had occurred from the very beginning i believe as this court found and so dago vs versus than zealous that the fact that the government contacts and illegally removing him cannot be a basis for reinstating the removal order if i can i'd like to rest sure morning good morning your honour's may it please the court i'm carmel morgan on behalf of the respondent the u s attorney general the government asks that you dismiss the petition for review for lack of jurisdiction the statutes and case law are quite clear that under the circumstances presented here where a reinstatement order is before the court under that vehicle you can't go back and review the underlying order that has been reinstated particularly so where that know that you're involved in that but in any event in any event were this court to dismiss this appeal and what effect would would let's say that counsel's client is successful at the district court what would that affect have on his status yeah i should explain a little further the waiver that's available it's that it's kind of a two step process you need to have the v petition approved first and at the present point in time the valar petition has been denied but were petitioner successful in the district court action and the valar petition were approved then there's a second consideration of the waiver the waiver is not mandatory its language says may be waived that could also be done as i understand it from outside the country so if you were removed still have some opportunity to pursue this matter absolutely yeah ok but what do you think about staying in this proceedings until the district court proceedings wrap up i would object to that your honor because of the strong language in both the reinstatement and expedited removal statutes again you could certainly if he were successful be granted that waiver in the future i think it's probably unlikely given that to my knowledge the domestic violence conviction of his has not been vacated as well he's got multiple illegal re  entries and at least one with a false documents and under those circumstances i would be surprised if the waiver were granted but it's possible how long would it take do you think before we got to get a final resolution of the i have no idea i'm sorry i i don't do district court work i'm not sure at what stage that's at that the valar petition actually was reopened in reconsidered once before so this is the second denial of that petition you had asked earlier or pointed out that garcia dating gong case which i think is quite on point as well as morales is clear that while the law just seems quite clear that you can't go back in time particularly for an expedited removal order the conduct she was talking about i agree is quite concerning but it happened well over a decade previously and there's some pretty strong language in there i was about the underlying policy reasons why congress doesn't want aliens to be able to  an expedited removal order part of the policy is that you want to discourage self help and you don't want aliens who come back and enter without authorization to be in a better position to attack and order than an alien who lawfully remains outside of the country after being ordered removed there are steps that the petitioner could have and probably should have taken to challenge the conduct that indeed is quite concerning but that would have been at the time the conduct happened for an expedited removal order there's a sixty day window as well i admit some confusion and perhaps petitioner could clarify but it seems to me  conduct that the petitioner is challenging isn't even related to the april twenty ninth two thousand expedited removal order that's being reinstated it appears to me that the order that's being reinstated had to do with an entry in calexico and that entry involved use of some type of false document i think the conduct she's talking about had to have occurred prior to there actually been one but if there are no further questions the government asked that you dismissed the petition for review for lack of reinstatement and that's not entirely correct first of all he had come to my office they took quite a while to prepare so he had come to my office a month prior to being detained and we're in the process of preparing it and we submitted it immediately to the officer prior to them reinstating in fact we had originally petition to this court to stay a reinstatement and it was in there at least now all our requests for a vowel and the fact that it wasn't vaccinated to the the form one filed in vermont was after the reinstatement order but the foul request was submitted to the officer i apologize your honor i don't it was it was literally done three days before our first petition which was dismissed before this court is premature we also listed out the fact that we had filed for a valid request with the instrument that the officer in our premature petition which was dismissed before this court for the specific reason that his reinstatement order had not his deportation order had not been reinstated yet we were premature what's your response to council's argument of this could be relevant also because the april twenty ninth two thousand a specifically i saw officers forced him to sign a voluntary departure removed him out he actually sat remission using a fake us passport which is the exact situation here and this court found that because the government's misconduct they are a stopped from using that removal order based which was caused by their misconduct and you're alleging that here as well i am  we have a trial date of october two thousand and sixteen which is not that far away given how long we've waited in this case it makes sense that fundamentally fair that he should have his judicial review that are your to your to your time