is whether russ judicata bars the government from related gating mr problems to portability in a second proceeding based entirely on the existing clowns that could have been litigated in the first proceeding in this case the government's decision to bring the second proceeding based on available grounds that existed in the first proceeding when the charge mr problems petty theft as an aggravated felony resulted in him languishing in immigration detention for a total of five years an additional three years during the second proceeding the government can provide no rationale or justification for bringing this second proceeding well i mean i think the rationale is i think it's  honor the government apparently believes it had the aggravated felony and i just decided to proceed with that ground alone and we're not challenging its discretion to do that the government has the power to enact the charges it wants to proceed with however before the case went before the immigration judge in the first proceeding this court had already agreed to take the case on bond and had vacated the panel's decision now at that point the government knowing that its strategy might or might not work could have brought the stock and to crimes involving moral turpitude charge however elected to continue to proceed with its one strategy that's fine however when this  to make a difference this is essentially the same thing and now you say and what we should have done it when they got to this court and banks still a ways down the road what's the difference your honor the government at the time of the first proceeding at any time during or after seeding it could have elected to lodge additional charges for substitute charges however it decided to proceed on the aggregate economy ground allotment now that's judicata which this court has found to apply to immigration proceedings bars the government from attempting to really get the question of deport ability based on grounds that it could have alleged in the first proceeding this if i specifically what concerns me from a practical perspective if your argument prevails you're basically saying the government has to bring them all from the outset and we don't require prosecutors to do that i'm not saying this is like criminal prosecution but the policy considerations have some similarity i'm not sure that it helps anybody to force the government to bring everything that it can from the beginning of on it because it's going to burden both the immigration court system and eventually us with multiple claims when it would appear that one would  deport ability at one time we're not saying that's the requirement what we're saying is that there are consequences to the government's decision to consider the consequences because there are consequences because in this case you're arguing to light you can bring the additional claims later education system want to deal with everything possible when it would seem like one would be enough your honor the practical problems here is really the fact that works here but now we have a second proceeding that's due to caught up lies to enforce r fact that the government decided to put in this type of proceeding when it could have brought this instant charge in the prior proceeding has actually created more problems for them to distill system it actually drains resources to have the government continue to litigat issue when it could have done it at one time there are rules that apply to immigration proceedings there are rules that govern immigration proceedings your honor it's an adversarial system in which both parties very just ten persons and here the government had its chance the government decided we're going to proceed on the aggravated felony we believe that's a strong ground to court ability we think we're going to win and that the law changed and they started appeared to be from about a month and a half which was before the case went before the immigration judge in the first proceeding and then we're back to where we were is there in fact a change in the wall and what looked like in fact do use the technical term a slam dunk could have launched additional or substitute charges at that time they could have done that at any point before the board vacated the removal order and terminated proceedings and the reason that that is so important in your honour's this is my third point is because in any adversarial system in any judicial system there is a need there needs to be a limit there needs to be limits on the government's power to continue to bring new charges without a limit without without applying rescued a car in this case stronger than the government is effectively effect that actively has the power to always to basically always win if it doesn't win one proceeding then they can bring a new proceeding if it has available grounds of support ability in one case but says hey we're going to go with the aggravated felony because that's a winner even though the law is unstable it's in question the ninth circuit  why do we have rules that say you can't bring a motion to reopen unless you have new facts why are there burdens of proof because the system believes that at some point there has to be a limit and if the government can always say well we didn't bring this before but we can bring it now and there's no limit the government can continue always do it we've got a unique situation here with a change in the or no additional factual burden i mean it's not this is not a i think you're kind of you're going down  decision had been the law of this court up until you know i months before the boy decided the case the new thing in that situation there's a substantial justification for why the government didn't point the instant charge  but here it's one i have fears the proceedings lasted two and a half years the government had all of these facts it knew the law on the aggravated felony ground was in question and it had the power under the regulations to launch additional or substitute charges so there's really no rationale or justification now this court ha reliance on the aggravated felony was abandoned sure looks like everybody was preparing this in advance anticipated it why didn't the government coming in or try to make some amendment or change when they c relied on the aggravation felony for the petty with a prior it had to be clear at least when the circuit granted in banker view that that might no longer be the law me that you put that all together you know the government should have done that during the proceeding it had ample notice ample time was ready to go and meet within days thereafter why shouldn't it be required that they have done it in compl at least follow the regulation they could do it within its councils pointed out in this just means pointed out within that time shouldn't that be the rule that where you clearly have knowledge of what's coming and get your charges in but in your honor we can see that the obviously could have brought that additional charge prior to the board's initial decision but we disagree that race judicata should be applied in this context no quotas applied research to the government's prosecutorial discretion in bringing bring charges that you can't back you got you can waste that time and time again it's not true during your honor yes this case has been drag on the alien has been allowed remaining united states in violation of before the b i a applies the rule here and there's a long time there for the government to step up and bring a motion to reopen or to amend or to add additional charges in the future that's that's the opportunity and nothing happens during that time and the b i dismiss this and the government rather than seeking to reopen files new charges now it's a procedural difference but some of these procedural differences have bite because they don't the rules of procedure don't mean anything and why is that the government shouldn't be told look proceed in the case that's open explain to the i a e a why you should be allowed to reopen or why you should be allowed to amend use the regulation the judge inside as opposed to wait till that's all over on even the december two thousand and two to may two thousand and three it's out of this court on its way back to the a and it seems pretty apparent the b doesn't have a whole lot of choice it can't overrule our court's decision and krone sanchez at that point it seems apparent to the government that the existing charge can't stick they've got to do something else and rather than seek to amend in that proceeding they wait till the vi dismisses the proceeding and starts a new well that's that's an extra five or six months the guy sitting in if nothing's happening that everybody's busy and i understand the avalanche immigration cases and you can barely get your head over the paper at that time the problem is that that case is closed and traditional ratio to coddle law plainly covers not only the claims that are actually filed but the claims that could have been filed so here we are and it seems like the practical answer is to focus at the opportunity i've just suggested file your charges there seek to amend the existing proceeding that didn't happen  and you know in some ways i'd like to carve out an exception because i understand the practical problem but i'm not sure how to do that without doing damage to the whole fabric of race judicata so if you can offer a way station or a limiting principle i'd like to hear it but otherwise this cases in the procedure of going back in this court at that time but i guess i rely on the supreme court's decision and american era were the supreme court held that the contention that a violation of immigration law must put they put all the eggs in one basket or the basket had been taken away when they still had an opportunity to change and i guess the question to you is that we know you weren't there but why shouldn't we take the position that in that