welcome you here it's what we call the night shift all of our colleagues got to sit in the morning but it has some advantages we didn't have too big a lunch we just have a couple traffic rolls i'd like to remind you of the first one is the traffic light system when yellow light comes on you have two minutes to conclude your argument when the red light comes on we ask if you stop as quickly as possible unless you're answering one of the judge's questions and the second one is that we will of read the briefs and the record excerpts we may not have gotten into the complete record before oral arguments so we could shape those and what what is a dispute well in that the record that the agency used had no evidence of his any reinstatement instead the b i apparently just assume that if he was  if upon remained upon equitable to you know except for the because they did not examine it was all in this case they would have the opportunity to take administrative notice of of a fact that was not in the record but you seemed like a waste of time to fame already said that they would there there is quite apparent evidence that the the order was reinstated and i just believe it's if if this petition is going to have a chance to reopen this case based on the change in law that it ought to be the agency that addresses those factors first not this court ok cool one is mandatory if a party asks the court right so it isn't discretionary with us if the government asked the court to take judicial notice of something that suitable it's must isn't it yes your honor if it's suitable and so your argument has to be either this isn't suitable or that eleven o five doesn't allow judicial notice  but you have any court that said that the decisions cited in my brief more go towards the restrictive you the courts take on on your digital notice in fact there's a case much like this one where i think it was a legal reentry prosecution but instead of take it mean the guy was there in court but they would not assume that his presence in the courtroom was an established fact that he had  been present with you know after it after legal reentry my concern because this case to me got into more tangled than i thought it was once the twenty eight j was filed but you haven't yet responded or maybe chose not to respond but you must be familiar with our decision from last month have decision yesterday and i believe that decision in its second portion seems to undercut whether twelve thirty one would apply here do you agree with or not the miscarriage of justice portion of the decision but when judge dennis speaking for the panel says the language of twelve thirty one would appear to completely deprive courts of jurisdiction to review reinstating removal orders another statutory precision twelve fifty two preserves the court's  set right but you haven't my point is you haven't pressed the second portion of the decision which seems to be a change to me in other words even if we would judicially notice the reinstatement order am i wrong to read this decision from last month the saying that doesn't deprive us of jurisdiction to assess a legal argument now that's correct but you haven't argued that yes and i suppose when i saw that sends me here it just seem reinstatement order cannot be reviewed but the underlying order congress has a separate statute on a motion to reopen and the underlying order it's fundamental after datta and  issued what's your best case for the other moralities care to from the ninth circuit where judge kozinski said that it's fine they can reinstate the order and the it mean restatements purpose is simply to remove the alien it's not to adjudicate any facts or any underlying problems the end the alien from abroad can attack the underlying order and he's fine with that even though the language of the two thirty one thirty one says it's not reinstated permits original date and it's not subject to being reopened reviews and the idea of attacking the emotionally opens is not considered but i have not seen any other circuits follow what's wrong with the just the underlying logic the way i look at and in this all over simplif law i'm sure but but but the sort of discredited what's that called the departed norm let's look at our departure bar sort of is the flip of this coin which is if you're an alien abroad you've been rebin sent overseas and now you realize  that your removal had an ill founded basis you have to attack it from there you can't legally come back wait till you're caught and then say there's a flaw aren't all these rules bars and laws essentially saying that's the problem you can't do it this way there's a parallel but but the departure bar which has been found i know it most but it is a strictly regulatory in this case congress allowed a motion to reopen for every alien and the i think the way to harmonize the statutes where you cannot reopen it is to permit reopening from abroad just not during the reinstatement process but you would still do you agree with me you'd still run into a big problem as to the first portion of may one because your client would have to show it's a miscarriage but the language of the decision specifically says it would be a miscarriage when he's illegally reenter right you don't you have to say that that's just incorrect i don't i would distinguish it's the first part of may here just because the  was really allows all aliens who have had multiple years in this country like mr rodriguez to have a chance to at least to have the agency look at his argument but it says withheld there is no it the gallaher biggest case in the circuit foreclosed any further appeal so he was really different than the case in santos where he knew he didn't show to court and didn't have a chance to there didn't law quickly enough that allows you to equitably told us garcia koreas from two thousand and twelve where it said that this court said that a an alien may file statutory motion to  i think the courts should focus on the really because this is the case that controls as i mean this court has heard many motions reopen cases before that and then that was a sea change where the court recognized that equitable tolling motion cannot be it's it's will be much better for this court at least have the agency have a crack at applying the correct factors their decision runs over just does not even recognize the many arguments presented in the motion about how he met an attorney and in jail and quickly put together a motion to reopen as best he could within the ninety days to qualify for equitable t and i think the the policy reason here is that motions reopen are a important safeguard as does the supreme court found daughter and that case motions reopened were not allowed if you if you took i i finds that we can still harmonize that by harmonizing one motion to reopen in two forty seven and the post the reinstatement bar on the other into through twelve thirty one good morning guys but please a court at the outset the government would argue that this court lacks jurisdiction over the petition for a view pursuant to the recent they hear the sessions decision that came out a couple of weeks ago that the facts of that case are very similar to the facts of this case the position that case was deported from the country early two thousand or even earlier than that  back in illegally the order was reinstated filed a motion to reopen and the question before the court was what jurisdiction is the court have over the executed removal order the court found that that motion to reopen was a quote question that that had come up in the circuits jurisprudence with regard to equitable tolling so mata was addressing the question of whether there is judicial review of a motion to reopen where the petitioner asserts equitable tolling to cure the untimely motion to reopen that was in our question in modern model is not addressing jurisdiction over an executed removal order and so that issue was not present before the supreme court the issue was of motions three open which are essentially collateral challenges so your honour's correct in the sense that before the jurisdictional levinson the immigration nationality act over the last couple decades review used to be in the district court  used to be available and in those circumstances when someone recently moved in they would come in illegally they tried to collateral attack their old order they would follow his petition and the court says the gross miscarriage of justice was the test there it's also come it in the reinstatement context and others is this because the government obviously made it has issued is this the go if you studied it and that is a correct application of habeas law so i don't believe that the government specifically made that argument right here but i think it's very consistent with but it was inconsistent with the un published a circuit law and its intention with the supreme court would you agree with both those statements you know i don't think it's i don't think it's and consistent with published unpublished a published precedent i don't think that unpublished person has reached this issue i don't i there's any other circuit said this i don't believe any other circuit has reached that the size issue but i don't think it's at all in tension with supreme court case law it isn't the trouble is this is a twenty year jail letter this isn't your primary argument and at least as i read me the remainder of the decision undercuts moots out your judicial notice which was your brief argument to us you want me to elaborate on that or do don't think it was argued in the he either secondly i understand your point group with regard to the analysis in the second part of me here that's not relevant to the point that we're making in our second argument our second argument is a futility argument review well that's correct although he indicates i think correctly that this court lacks jurisdiction as well except for legal challenges under twelve but that's what he's making here correct and we're not arguing that this court to be in when the rest of the statute says and you know review that that isn't the jurisdiction stripping it is it is under here that your station has to pick but you have to also then read it consistent with  i'm not saying i agree with a right your judge dennis rights it has to questions of law which this this individual is bringing as opposed to a change country circumstance the best circuit our court would have jurisdiction but it would be futile because  the board could that's your view of twelve thirty one applied here it is although i don't think the court gets i don't think the court can get to that issue because of its last year six and as an executable war he does not raise so for example in the here the fisher raised a claim separate and apart from the challenge to the executable boarding that claim was a claim based on changed country conditions to support a claim for asylum withholding unless the end of the miscarriage large unless gross miscarriage justice and there are three reasons why there's not a gross miscarriage of justice number one the petitioner failed to see traditional review over the agency's cision in two thousand and two but he'd case law that says that it's not a gross miscarriage of justice if you're challenging an order which was lawful under the law that existed at that time so in two thousand and two when the when the immigration judge of the board denied his claim at that time the agency was simply applying what was the law in effect at that point and several circuits have found that that's not a gross miscarriage of justice and this court has even if later removal which is a wholly discretionary form of relief and for which there is no constitutionally protected liberty or property interest and i would refer the court to a similar finding in the here and i have a bracing here at all respects right i'm sorry page four twenty six believe me he is contention that the b i violated his due process rights is unavailing however as this court has held that an alien has no liberty interest in a motion to reopen and therefore there's no cost to shoot protected liberty or property interest therefore there can be no christmas caveat here i know you're well versed in all of the technicalities raised by my here but what about where we started out with davis observation that if we take judicial notice of the reinstatement order that see end of it precludes reopening and therefore it would be futile to remain in this case back to the agency if that's what your honour's asking how can we predict to your dictionary i think the supreme court has cautioned against hypothetical jurisdiction seventh circuit has done and in fact as me he has has done because in the here i keep using here but in the here the court said it rejected a similar argument that the day i didn't consider the reinstatement such in fact that  case here at least to the agency said something about it in that case the agency said didn't rely on it at all and i think for twenty five in the here the the court said  discussion here about may here but it came from you senator to us on february twenty sixth i do not believe that opposing counsel has had an opportunity to comment on it at all reopen a reinstated order which is his main argument is not at all a clickable that i think that that decision if you read that decisions on bank decision the ninth circuit which which rigorously enforces the executed order but not in the context of a motion to reopen and so that case is not a political and in fact if you read is cleared of what it says is that the petitioner should wait outside the country for the period of time and follow emotionally open from outside the united states rather than illegally reading someone else's is all about that the ellis should pursue lawful remedies from outside the united states my ok mr o'connor  have you had a chance to read it i have your honor and it's just that it's a disturbing you know for the petitioner development to say that every form of challenge to an underlying r so if if if since since that those turned on that's a reinstatement case i'd just want to remind the court that in our brief and we discussed many cases where they refused to take judicial notice given the danger and even of the government itself in an eighth circuit case has argued it's called the paris garcia of the lynch it's fourteen to eight for two and it was a  reinstatement case also where in that case the the petitioner was trying to offer evidence that he had been in mexico and had receipts to show and the government or give us in firstly that they could not take judicial notice so i i think receipts are very different than an official agency opinion yes your honor but that the the loan document that we have doesn't show the reinstatement process which is more elaborate than what they're giving what about is very is the literal reading of twenty two thirty one which is even if maybe is right that we do have jurisdiction as you've been arguing the board on remain and would not be able to reopen which isn't a jurisdictional barks they can't reopen believes they would have the chance to consider yes this court consider the constitutional legal claim that we're making that under sentence but here they could they could review the legal question of we could review we re mand but then they can't reopen well that would be a question maybe they take that maybe that at least they get a crack at it that they they're there reading on this case which is unpublished of the reinstatement bar maybe something that could be briefed  and the agency might change their mind i think that's the point of of this judicial review of agency action is to give them a chance to apply it in the first instance as far as the of the government's argument that oh you know cancellation a little is a special area and it's and it's that we have the monk decision which says it's it's something that shouldn't be bright even if the liberal view that yes we can take jurisdiction of it that still gives the government a chance to deny on an on meritorious claim because the underlying judge can look at the pass and i guess in a discretionary matter at his discretion what about the argument you could never miscarriage you should have anticipated the change in law at least preserved in for the future and that would be put into a very high burden on often very poor litigants to take  very complex issues two to article three judges i think the agency should be addressing those if they have possibility instead of contracting their jurisdiction at least trying to entertain the purpose of two forty seven is eight and they are in investing statute i mean it invests aliens the right to reopen so the b i seems to be skirting their their duty to at least entertain the whether he was diligent and the other factors for equitable tolling and i believe that's what this court should do all right thank you thank you very much we would like supplemental briefing each of