court seeking review of the board's refusal to sustain his appeal of the denial of his motion to reopen while respondent repeatedly states the court should defer to the government's interest in finality it is in fact petitioner who  prevailed twice before in this case because of the government's error on jurisdiction and the government's error in applying the wrong standard of adjudication in the appeal with denial that permitted twice for what happened the last time it appears to me that the paddle the gang argument that was adopted by the third circuit did you make that argument before the last panel because they didn't say anything about that they didn't i mean we also made the i just said go back and tell us which test was applied and said which test should be applied and the b i said we applied that test i still wonder what's left will show your honor but they didn't limit the scope of the remainder we argued the regulatory argument as well we argued both issues and they just didn't address them they only addressed the standard but of course that's the first step because you can't even look at the board's decision in till there is a correct standard applied and that wasn't done clearly under the correct standards for the until the two thousand and fifteen decision well again that's not what the panel said the panel didn't say the wrong standard was applied it said we're not sure which standard was applied right i understand but none of the other arguments you're arguing were adopted by that prior panel decision so when you characterize that as a victory for your client i'm not sure it's really weren't addressed and they you know understandably want to dress because there was only one ruling that was necessary for the court in the last decision which was go back apply a clear standard under the correct standard that's been done i mean the regulatory argument hasn't been the the i a e a did so there's two issues before the court your honor one is this departure from a settled course of adjudication and the other is the violation of the regulation on appeal so for the settled course it seems that most of the cases you're citing to establish what you're calling a pattern are cases in which the government did not oppose to a spontaneous reopening either explicitly did not oppose or did not respond but here it seems that the government did oppose and i write about that they there's been so many they a reasonably i don't feel originally was on jurisdiction only before the immigration judge and i don't believe they filed an opposition before the immigration judge themes that they have been in january does have a case where the government opposed and they still did great most of the cases you've cited are oh sorry where the government did oppose yeah yeah there are a few where the government did but how many cases you need to establish a pattern well  in cruise the third circuit decision they had ten cases and they saw a pattern there i don't think you have ten cases where the government opposed where the government had i don't believe i mean but reality is they don't say in a lot of the decisions like the cases we just twenty eight terminations because the person is a permanent resident after the comedy of these cases were published by the board zero that is the issue now in our in our jurisdiction if they're on publishers to actions we don't we have a rule you know her to the in our court because we're looking now at the settled course of adjudication analysis under yang which says that any departure from that settled course is arbitrary if it's in an inexplicable departure there's no reasons or if it's an the number of unpublished just positions and the winner has is the one who has the most to going there away no i don't think so i think we follow what happened in park the third circuit case which is look this is your discretion you decide how you want to exercise it but tell us why this case is different than all of these other cases and if you look in part what happened is the third circuit sent it to the board and the board then following the appellate regulation sent it back to the immigration judge and said judge if you make a determination was this vacated because of a legal invalidity and if it was tell us why you would deny in this case and how this is different in a non arbitrary ray from the ten other i'm published decisions is there any lack of clarity factually here about why the conviction was vacated well it's not to me nobody's addressed the board says it wasn't an exceptional situation and so you know technically that's a fact finding issue for the immigration judge so we don't know why they find there was no exceptional situation if it was the fifteen year delay i'm asking you why the state court vacated the conviction it was vacated because there was a lack of a transcript that was generated and there is no dispute about that right there it's not unclear the way it was in the third circuit case well i don't think we know that because there's never been a ruling from the agency the agency has to make that determination and i think the facts are really contested there's been no briefing on it and no deter on i do think there's facts in dispute but are they good sure we don't know the reason why they found there with the next they may have well found it wasn't vacated on the merits that's happened before from the board because there's no reason we don't know is the fact you're arguing that needs to be clarified is the basis for the board's decision that's not a fact and i j it's going to find what a fact is necessary for an i j to fund so two things again the basis for the vacant chair and to the facts relevant to an exceptional situation for reopening so basis through the vacant sure is not disputed right it's because there were no transcript that is correct there's just no agency decision saying that so what tells us the agency has to recite that when no one is disputing it well the agency said there was no exceptional situation so how would that square with its past policy of reopening everything else when there is a vacant chair based on a legal inability here and are you saying there are no other cases in which the agency has denied reopening in similar situations there's not we have a case following this but otherwise i have to say i don't use all my time but there is not one case we could find where the exceptional situation burden is applied twice it's applied here to the vacant chair of the conviction i met again they say and even if the conviction was vacated there is not a showing of exceptional situation on the equities right they say you have all these positive things but that's not an exceptional situation and we cannot find one case that did that the exceptional situation links only to the big picture of the conviction but not the eligibility for relief the other cases say you're eligible remained it back to the judge and i'm out of time you're very sorry let me ask one question we're kind of plowing new ground here and i as to what the board has done why wouldn't it be the responsibility of your client when it was before the board to petition the board for reconsideration on the basis of x y z so the board would first be able to solve  you've covered that but you know have a decision from the board that you say now was flawed but there was no don't petition at that time for the reading reconsider why should we apply the same rule we apply in an ordinary case that it's w actually or moved to ninety ninety four he waited fifteen years before seeking to vacate his conviction and then moving to reopen two weeks ago this court and it all legal challenges to this court my cold medication and so forth i may have missed something but do we have in the record anything about a reinstated order regarding this petition or d in the florida in its record  fifteen seven three eight six nine record there is the removal order their doctrines pertinent to it but we're not merely talking about the record in the sense of the agency record we're also not talking about th an order regarding this petitioner in a different case yes do we know any i mean the does this panel know anything about that yet so in the twenty k the government file one five and in that case an efficient explicitly conceded that if there was reinstated removal order reopening would be barred i have a twenty eight she letter submitted  you dated january ten but i confess when i looked at it i didn't see anything about what you're talking about here and i said look at it quickly now i guess i still don't is there another letter maybe is not possible and could you say again where that concession is so you have to go through the it's in sixteen seven one five one five it's in the other case it's and the first petition for view of the reinstated removal or yes so i don't see you talk about the concession in your letter did you know your honor but we need to look at the briefs from that other case to even learn that it exists  raising know and seems to me this is an odd way to raise it but go ahead well i preach that i apologize for you know honor but on june first of twenty sixteen petitioner filed a supplemental to stay and that case on and that supplemental stay on page seven petitioner explicitly states quote the decision contains by that i mean board decision contains no mention of any order a reinstatement of removal which otherwise would have disqualified him from moving to reopen the case the petitioner cites eight u s c twelve thirty one eighty five and that is the bar to reopen when you have a reinstate removal order but argue that there were be i e cases in which to respond to every opening was granted in similar circumstances and that he should get reopening under that line of cases right i be argued that the court had reopened correct so well exhaustion requires that the agent be put on notice what it's expected to do it because here is the petitioner was arguing that sue a sponsor reopening is what the agency is expected to do right course the attorney general by not saying to the agency hey you do have a subtle course we're essentially getting by looking at unpublished decisions that we don't know wh seems like that would be a pretty significant difference in this case compared to the cases that petitioners are relying on but i didn't see you make that argument well david all the years we're looking at park and unclear decisions so we're not even let me ask you a question before you run out of time yes see your office and realize a lot on the third circuit case and  have not ruled on this in a published opinion we have to look at the third circuit keys we have opinions saying that we do not create conflicts unless there is no alternative or we use other wordings very important but we don't want to be in conflict with third circuit if if we applied the third circuit case how would this kid case come out well if we something very important it said even if there are exceptional circumstances the agencies still deny reopening what's known to park as is well there is a  of action like that of course and that creates exceptional circumstances every girl agency has to explain itself welcome me and says well it doesn't matter if there ar several circumstances great the agency can reopen but the agency is not required to reopen even if there would be a subtle course that's the necessary it doesn't say even if there's a of course right it just says even if there are exceptional circumstances because that's not something we can review correct if that's the entire basis fungo park which is ok so of course but whether a settled course is error of violating  why it was my lead in this case so council we have we take you over your time thank you very much for attending by phone and good luck with the snow thank you on operation and we'll give petitioners council one minute honor i'm thinking about your question about the opposition there are examples but they are smaller reopening was done when there was an opposition but if think if you apply the park analysis that would require that the agency then look to see if that was the reason right we don't know what the reason was for reopening i mean for denying reopening in regards to the opposition and so under the channeler a doctrine of course the court cannot do we are not allowed to assess the exceptional circumstances so the only thing we can figure out is whether there is a legal error and your argument is there is a legal error because they violated a law and of cases that are totally analogous to my case but if there are big differences in that line of cases from our case then i don't see how you can say it's totally analogous that case you said we don't know why the board made the decision it did all we know was that it made the decision that didn't give us reason or a basis to send it back to ask the board to explain but sure here we have stated reasonings right none of them are because the government filed an opposition and of course phony our reduces that coming in so only the purely discretionary issues and park lays out the same rationale from tony about the logical extension of bonita is of value if we can look at the record and find that it was premised on a legal air that gives us jurisdiction that otherwise we wouldn't have and you haven't pointed something that would constitute legal error as best i can tell you we have a departure from at least twenty one cases the court is saying well only have a departure from twenty one cases of the twenty one cases are analogous to this one and it's not clear that they are well but the i mean there if the court went to every single case the facts would be different to i think the proper course i or as a principle or as a presidential decision all you can point to is a collection of cases or you infer that result without knowing the background facts right but that is stated explicitly in the unpublished decisions and that is a pattern of adjudication under yang but you're extrapolating that pattern by assuming you know what the relevant considerations were is there anywhere where the board said the thing that you just attributed to them which is that when ever of conviction is vacated it's an exceptional circumstance in the twenty eight years that we just  letter do you mind if i just submitted by twenty j otherwise i want to take your time up but it is in the recent january for submissions from there's a number of cases in there most of them just say exceptional situation reopening but one actually explicitly says the vacant chair of a conviction is an exceptional situation ok well we have taken you over your time ok so mendez gonzalez vs whitaker is submitted and our next case on calendar is divan even this would occur which is to case numbers fifteen dash seven three two eight five and fifteen dash seven three eight