immigration judge the petitioner had requested number one continuance for as i went thirty approval which was denied and then he proceeded forward on his five hundred and eighty nine or asylum application that was also denied the immigration judge granted vul granted administrative voluntary departure and administrative closure the government appealed that request to the  and in may of two thousand and seventeen the be a overturn the immigration judge decision and sort of removal order and in the alternative a voluntary departure order while this matter has been pending  we have submitted a brief on this issue and i think the main issue in contention is whether the be a properly overturn the administrative closure decision or not based on the facts status and consular processing the government had argued on appeal to the that mr soriano wasn't eligible for adjustment of status in the united states  could and therefore wasn't eligible for terminations and they wouldn't agree to determination i think those arguments are misplaced in that it is clear from the record that mr  in mexico and he was requesting time to file a six a one a in the united states to get that approved once approved he could move for a recount during and request terminations or voluntary departure the board's reliance on this fact that terminations wouldn't be agreed to by the government that you don't necessarily have to have them agree to determination you can always move to ask for terminations and in prior cases i have gotten that over the opposition of the government that being said i think the board didn't apply the facts properly to when they decided that the judge failed to consider all the factors of th the administrative closure now if you review the crime the immigration judge's decision he did go through a thorough analysis of matter of that scene so i think that the board what is the error in your view that the erred in its premise that we were talking about adjustment of status and terminations of proceedings we're not talking about that we're talking about consular processing where the individual after the six when a is approved goes down to mexico for permanent residence processing through consular processing i don't believe that he was eligible here to proceed with adjustment status at least there's nothing in the record that indicates that he may have had a prior petition filed in two thousand and one now that may have been there but that's not something that came up before the immigration judge at the time of the hearing so that's our position is that they improper to look at the facts and relied on improper facts for their decision and therefore it was an abuse of discretion additionally they stated that the judge didn't go through the of that same factors the main factor that the board relied on to say that events in was that it was not appropriate is that number one they said he could not was not eligible to adjust status number two that the government would not agree to it and i believe the rd reason was the criminal history again we don't know what would happen because the time wasn't given to file the six a one day in prior practices what would happen is it would either move for a continuance to file this excellent or seek administrative closure file your six thousand and eighteen which is the waiver for the illegal processing i take it it's your position that the criminal history irrespective of the likelihood of the attorney general a green is not a bar one are  process the way you suggest that it should and it got to the attorney general's decision making process would the petitioners criminal history prevent the exercise of discretion it could prevent the exercise of discretion or at the consulate they could require a six on one waiver for the dish until rounds of inadmissibility but it would not the history your coins history would not prevent the exercise of discretion should the government be willing to exercise in candor to the court given the current administration i would have to say that's why if it's my question with irrespective of the prospect of success in the current administration i believe they would probably at this point deny it because what effect does it have when you have the governments and then it wouldn't exercise discretion well exercise discretion where if we're talking about exercising discretion with a six on one a that would be us c i s not  or department of justice if we're saying they wouldn't exercise discretion to grant term a nation that could be very well true but when you it i have  really filed when they say we're not going to agree to determination i filed for termination for the judge to decide it so where they say well we wouldn't have agreed to it i would have said fine don't agree to it i'm going to file the motion and if it's denied i'll take it up from there and continue to fight it so the reliance of the b i a on this issue of well the government said they wouldn't agree to it and they wouldn't excise  discretion i think then it comes to is the p r i relinquishing its power for an independent judgment in the immigration judge this judgment to go with the agency decision and then you have a question was are they still impartial if they're going to say well if you will exercise discretion then we will make the decision if you're goin presently in the united states here's your honor there is a stay in this matter i believe it was granted so he is still in the united states and married and living in sunnyside washington the other issue that i think is on the table is the fact that we do now have let me just understand though as a practical matter you received your client received on terry departure yes and it's your concern if he were to voluntarily depart and proceed with what you've indicated in terms of consular so then he has a removal order and he would need to to twelve permission to reapply after deportation to come back to the united states so while this matter was pending we attorneys general issue  castro and that essentially the government maintains eliminates this court eliminates any decision where they say that the immigration judge and the b s a can that issue administrative closure with regards was not to be afforded deference and that it was in correct now i would concur with that what you have is the attorney general coming in issuing a decision saying no more no more administrative closure a practice that everybody has seen well actually strike that a practice that has been in existence for a very very long time both immigration practitioners as well as ice counsel have used administrative closure to resolve cases waiting for decisions from u s c i s interest of justice  the respondent could be in jail or might not be available and things like that and the attorney general essentially came and said we're not going to do that anymore because that fosters delay we're going to get rid of that procedure usually agree with you we're kind of right back where we started though and that would be really looking at the decision to reverse correct that's correct because that would assume that the i j a had the authority to grant it in the st place and that therefore the i a e a had the authority to make a determination exactly and i'm saying that that's where were we thank you although that we have this decision we're back to did the immigration to do the proper decision and we maintain that he did and did the board of immigration appeals properly tonight and overturn it and we're saying again that they did not so given those factors you know the fact that the  y relied again on this adjustment of status theory which really wasn't a theory that was presented and i would say to the respondents opening before the b s a where they maintain we're not talking adjustment status here we're talking consular process and the fact that they maintain that terminations wouldn't be agreed upon again those factors aren't those are factors that shouldn't be relied on because this is a situation where are they then relinquishing their power to decide the other factor i believe that they said it would not i think it was the th factor  order for the petitioner to obtain the relief that he ultimately seeks he's looking for consular processing in order to obtain lawful permanent residency or p r status in in all of these scenarios the petitioners required to obtain a waiver and in all of these scenarios the petitioner is required to depart the united states for mexico in order to complete that process the only the only real difference between the scenarios is when and how he's filing the waivers that are available to him at present while he's in the united states under an order of removal he could file the waivers he could have filed those waivers while these proceedings were pending we f fifteen months ago that laid out the procedure for doing that and in that time he has not filed those waivers the waivers the six hundred and one a waiver is still available to him notwithstanding the fact that he's under a final order for mo and had instead of appealing here excepted voluntary departure he would have been required to file the six hundred and one waiver which is the exact same document it's just that you file it from mexico rather than in the united states because this cour intervention isn't really required i don't think that there's there's there's nothing else really to answer that the boy did not ultimately abuse its discretion and and declining to administratively close the position or his case because there wasn't anything else for the immigration judge to do the board under the regulations refuse factual questions for clear air but it reviews questions of law at discretion and all other matters to novo so the board appropriately reviewed the immigration judges fact that the availability of a waiver would not likely impact his proceedings before the immigration judge they did just would not agree determination in the case and even if the waiver were granted and that the immigration judge had already held that the petitioner had already conducted of it and now he's in a situation if his orders affirm that he doesn't have voluntary departure is that right correct but even though he doesn't have all in terry departure he's still not completely precluded from obtaining voluntary departure under the regulations once he has filed an appeal with this court that's withdrawal of the voluntary departure could it reinstated in its discretion that's an excellent question your honor and i'm not sure i'm not  fee i think though your honor that it's not required to reach cash or to in this case that captured him wasn't an issue didn't talk after the board's decision in this case obviously the board didn't rely on it the board instead looked at the prior e matter of cash or tomb holds that the authority is limited to the situations which are clearly provided for in the regulations and this would not be one of those situations so it's  a position that for example if you reminded the case that masher matter of casterton would be the controlling law at this juncture and that in this case administrate of closure is not appropriate under a matter of capture to him that's clear because the image because the attorney general  withdrew the delegation of authority to the extent it had ever been delegated prior to administratively close cases except as specifically stated in the regulations let me just make sure i understand the government's position and then that is that because the b i a didn't rely on castro tomb but instead on the prior case of and of the z in that the issue set forth in romero is not on the table correct all right thank you yes i mean the only way that you could possibly reach that question is if you found that the board abused its discretion in which case we would argue that but now caster to mind control and so remained would be  le we can spend a few minutes talking about the appropriateness of caster to him again i don't think it's necessary to this case and i would also know that none of those issues have been briefed in this case think you know that the position that the government took in the brief was that it was not before the court and that it was not necessary to reach those issues in order to resolve this case but to the extent that the court has questions i'm happy to entertain them  here is not ari well otherwise again because the process that he seeks to complete consular processing does not involve the immigration judge and because s reasonably argued that the objected to administrative closure because his likelihood of receiving and receiving the waivers that he sought was speculative as they're entirely just briefly your honor i think i want to clarify that the government maintains that mr you need to apply for a waiver while these matters were pending he can't he's not eligible for a six  more difficult to get down in mexico mr benito's was requesting was for time to file the six and one a huge in the united states to see if you could get a decision here and that's the issue here is if you get the six and when they approve here and you go down to mexico you have that waiver in place now he may have needed additional waivers for the criminal history in the down consulate at seattle where as they would back in after removal order so we're saying that again the b i erred when they revoked the administrative closure based on their belief that he could file these waivers here and that there was going to be no