the judgement is that the end of the story for you i mean how do you and we get around that well your honor first of all the supreme court decision was in the context of civil litigation it was not in the context of an agency decision agencies are free to make their own rules but regard to procedures but your honor the bigger question here is not whether the government was the prevailing party here the biggest i mean the bigger question here is that whether the immigration judge had the discretion and the authority not to make a frivolous finding in this case even when all the requirements of frivolousness were present not admitting that she filed a frivolous asylum application because that issue is not before this court but yes this case is about the procedural posture we believe that on that ground this this case should be  immigration judge to make a determination as to whether the petitioner qualified for the fraud waiver in the absence of the frivolous bar now your honor pointed out that supreme court has said that the prevailing party does not have to  appeal across appeal it ruling but the supreme court has also held that that the agency is not required to rule on issues that are not dispositive to the decisions they reach and in this case the immigration judge denied the petitioners fraud we have our applications and he exercises discretion under the law and not making a frivolous finding not frivolous finding is a very serious charge it if a person is found to have a geisha a frivolous filing of an asylum application that person is permanently ineligible for any immigration benefit and based on the severity of the sanction we believe that the immigration judge had the discretion not to make such a finding in addition to that the government forfeited forfeited this issue by number one not appealing it and number two none of the exercises discretion and more importantly the agency's lack of analysis on this issue prevents this court from reaching any conclusion one of the bedrock principles of administrative law is that an agency decision can only be reviewed on grounds or affirmed on grounds based on the grounds relied on by the agency in this curious the for the current cia the i j a may have had the discretionary the discretionary authority not to consider the frivolous claim but he did eventually consider it nevertheless and when he did he c filing was in fact frivolous you know he was frustrated because he didn't feel like it was necessary to make a ruling on frivolous filing issue because he had already what are the petitioners removed on the first issue i mean well your honor the thing is that the the remained was not necessary or required because the judge has discretion under the statute and the regulation to exercise discretion at two points the first point is whether to engage in a frivolous inquiry and number two after the frivolous inquiry has begun when the judge had denied the petitioners applications for fraud waiver she had already said that he would not address that issue because it was not necessary and secondly exercises discretion now the record compels the conclusion that if this if immigration judge fully understood his authority under the statute he would not have made this frivolous finding in fact i can point to at least half a dozen  instances in the record where the judge said that he was forced to make this decision even though he did not want to make that decision even after he rendered the decision the second time and making the frivolous finding the judge said to the petitioner that he was compelled to make that decision i can point to the record where the judge said that if you look at administrate of record if you look at the administrative record  one seventeen to one eighteen the judge said that under the circumstances and the sympathetic facts in this case he would not have made such a decision unless being compelled to do and i need an answer to this the department says that the board did not address the fraud waiver issue in tying a seventeen decision and that therefore that is not before this court what what's your thought on that your daughter i'm sorry i i didn't follow the last part of your question i'm sorry in its brief the department said that the board didn't address the fraud waiver issue in that twenty seventeen decision so that basis for denial is not before us that's  about the remained on remained the immigration judge conceded that the law had changed and that the four had now determined that a petition jubal for a waiver of fraud if the fraud occurred at the time of her application for adjustment of status nevertheless he by reference his previous finding that why he did but he did make in his original application to findings about statutory eligibility for the fraud waiver first that the aliens were first that there was an admission problem and that they couldn't apply for the  reason he might be incorporating that part of the decision i'm not entirely sure but i thought of the immigration judge on remand also decided to find for an additional dispositive leeson that the petitioners were ineligible for the relief because they filed a frivolous asylum application and that is the decision that is on review right now and that decision was sound it was supported by the record and the petitioners conceded that they're not challenging it that they did file a frivolous application and thus subject to the extreme consequences of those actions of the use of the asylum process i mean they can never ever return right it is a bar to all relief from in the statute now they could apply for withholding or protection under the convention against against torture those protections are in place by treaty and not they're not for close those protections but they chose not to pursue any application for protection from norway after given  i believe you know a motion to reopen or remaining cannot be planted unless there is new material evidence that's a standard we rigidly hold petitioners to all of motion is that better well thank you ok the department's motion is a motion to remain on but it's a motion to remain and not based on a change or a new fact but a change in law and their motion was also a withdraw all of their legal arguments that they made and that withdrawal was sparked by a change in position which way which they had the ability to make under the board practiced manual a motion to remain and while proceedings are pending before the board can be made at any time at any time and are not subject to time a number of prior months nor are they subject to other requirements that we usually  both parties to when it comes to those kinds of motion there are no other questions about this case i'd like to conclude but first i do want to make particularly clear as i can what happened in this case because it is a tad convoluted in the immigration judges first proceedings  he found that the petitioners were not statutorily eligible for the fraud waiver for two reasons he did not reach even though d h asked the department of homeland security raised a frivolous challenge he did not he chose to decline to make that are to make that finding at first probably a judicious use of his resources the limited judicial resources he didn't have to make a finding because he found that they were otherwise ineligible for the waiver now he also declined to make a finding affirmatively that or negatively that they merited the waiver as a matter of discretion which would have been another dispositive reason to find them ineligible for the waiver they saw on appeal to the board the aliens first raised that those statutory findings were incorrect they challenge that they didn't challenge they noted excuse me that the immigration judge did not make a frivolousness finding but they didn't challenge the immigration judge had to make a discretionary finding ultimately for the fraud waiver and in essence their argument now that the immigration judge couldn't neta go back on his decision not to make a frivolousness finding and is an attempt to have their cake and eat it too because they have never argued that the immigration judge as they've appealed to the board they've never argued that the immigration judge had to have made the discretionary finding in the first instance when he found other dispositive reasons precluded the aliens from the relief they  now on excuse me i'm sorry i got a little sidetracked during remained during the briefing to the board that both the d h s s initially defended the immigration judges legal findings about statutory eligibility as the law began to change the department of justice made a change in their litigation strategy and alerted the board promptly that they were withdrawing their defense of the immigration judges legal conclusions about the fraud waiver but they noted correctly that any finding about statutory eligibility would be premature because there were other ways that this that these aliens could be ineligible for the relief they side and those were namely as a matter of discussion whole wholly and frivolousness finding and the board clearly in its first order in two thousand and fourteen took into account that there were unsuccessful so that the board could consider discretion in the first instance because that is another way that the another thing the alien must prove in order to be eligible for the waiver that she saw the immigration judge the board's order thus did not violate any sort of or usurp the immigration judge's discretion to make a frivolousness finding as the petitioners contest today and in their brief the order is open ended from two thousand and fourteen and allow the immigration judge to consider frivolousness but also to again declined to consider from a list that and therefore the aliens the petitioners arguments that somehow the immigration judge was hamstrung to thank you your honors your honor in short this case should be ok should be remanded to the immigration judge because number one the boards remained was improper and number two the b i e is failure to address the frivolousness to shoot that petitioners raised in opposing the government's motion to remain and was never addressed by the board in any of the decision that a lawn is the ground for  because the court cannot meaningfully review an agency decision when the agency does not make the record clear in the decision here and your honor in this case may not condoning what there is what the petitioners did what they did was wrong and the apologize to the judge this case is about executive discretion this is the discretion that congress has given the immigration judges through the attorney general and not making frivolous findings as a matter of discretion so the question is not whether they did something wrong the question is whether the immigration judge was required to make such a point in this case clearly the record compels the conclusion that immigration judge felt that he was bound by the board's decision on remap and to make it frivolous finding or at least analyze and then make a finding immigration judge made the same error as the immigration judge in the second circuit decision that we cited made but he felt that his hands were tied we believe that if he had fully understood his own discretionary authority he would not have made that decision and the fact that even if ultimately had denied the waiver application at least this would not have heard the petitioners in a way that they would be permanently in other people for any immigration benefit in light of their direct kone and consequences of finding an immigrant filing a frivolous application