case the nd is the motion to reopen which was filed with the immigration court in this particular instance now your honors there and we're going to address each one of those matters individually starting with the reinstatement process now the reinstatement process is just that it is a process there is no new order that is created rather this statute allows for the agency to reinstate a prior an existing order the courts upheld that reinstatement proceedings comport with due process where there is due process in the underlying removal proceedings statutes for final orders or removal there is no disharmony between those two statutes in fact the statute itself plain on its face allows for constitution questions and questions of law to remain within the jurisdiction of the court and that is not an unusual position and in fact this court in molino warez found specifically that in the sense that gutierrez's th amendment right to due process now while it against in removal proceedings don't have a whole host of rights what they do and what the courts have repeatedly and consistently found is that they retain a th amendment right to a fundamentally fair hearing i would submit to your honor's that when you look at the record as a whole and in particular the transcript of that  process is not even a court order it is a purported order but it is not one that was signed off by a judge instead it was a document that was signed by a party to the litigation that that  of st impression because the issue of can the constitutionality issue can a due process challenge under the u s constitution is that still within the parameters of the court's jurisdiction i don't believe there is any case that constitutional one the question are and yet how was not a challenge to the fundamental th amendment rights that he had indeed the question before in mar and yet to go was a motion to reopen sue a spontaneous and  that the court has already found is because it was a discretionary form it really the court didn't really didn't did deem that to be a question long but in law or in yet there were a number of factors that i think make it incredibly dissimilar the st being that there was actually a valid worry that was reinstated we don't have that in this process that has occurred in these in these proceedings in mister gutierrez this case secondly the regulations that are designed to protect even ringback the limited due process rights in the reinstatement process we're not challenging any way in law yet so i would submit to your honor that learning at zero is distinguish wholly because of the issue that was proof that was raised in that case versus what isn't what is being asked to be reviewed here the the nd part and i do want to address this real quickly it requires the agent to actually go in it says the the immigration officers must obtain the court order doesn't say a copy of it doesn't say what's in their court file i mean there's a regulatory requirement that they actually that they obtain  court order and that points the agency directly to the court file which again was not done here so not only are there regulatory violations that occur with the process every and statement in of itself but i would submit to you that there's a question very well you may thank you for your argument ms greer will hear from you may it please the court i'm christina greer on behalf of the united states attorney general to certain constitutional questions and questions of law in other situations where review has been stripped from the court this court has actually found that specifically that that subsection does not  only issues that the court can review when it comes to a region the actual reinstatement is the aliens identity whether there was a removal order and whether the alien unlawful y reentered the united states and those three issues have been conclusively established here petitioner has not cited any authority allowing for that requires a look at the is there a signed is there an order that's actually signed by the a miscreation judge in the record there is in the immigration courts record so there is an actual order signed by judge the order at or sixty six dollars is an exact copy of that same order but in a different handwriting and obviously signed by a different person with the immigration judges name was the one that was signed by the immigration lawyer the government's lawyer is that correct that and is that the one then it got sent to mister lawyer so what happened is after the hearing this was a tele video or telephonic hearing for whatever reason the ins attorney asked the instruction of the immigration judge filled out the form as the immigration judge filled out the form and then handed the removal order to petitioner his counsel's later received a mailed copy of the immigration judges actual signed order ok so his lawyer got the one that was actually signed by the immigration judge yes and there's i believe it's it would be page four  dollars there's a cover sheet to that order showing that the it was sent to the immigration attorney and i would like to note that at page in the reply petitioner alleges that those two orders w petitioner and that's the only reason they are in the record and that's incorrect the submissions by petition are actually and page for forty of the record and the documents after cage for forty are what was in  are the immigration courts records so all of those documents were maintained by the immigration court and so what is true that it was this other order that was actually complete filled out by the ins attorney that was attached to the notice of intent to reinstate it however to the extent there is any harm it does st of all it does represent adequately what the removal actual removal order said it is identical in all respects but to the extent there is an error it would be harmless because all that would need to happen to remedy that error is for the court to remain or if the court remained of what would happen and that is controlled by this court's decision in turn and does where the court found that even a procedure really regular entry after removal is not a lawful and treat because the petitioner did five the statute states that once an order has been reinstated it cannot be reopened and that is what the immigration judge stated here this is to board of immigration appeals decisions from the one thousand nine hundred and sixty s matter for enough and matter of malone both of those are predicated on an old statute that did not specifically bar reopening out during or after reinstatement additionally those two cases a rose in what more reinstatement proceedings because previously there were actual proceedings before a special inquiry officer but with the passage of think jurisdiction is the right terminology for the board's ruling or the r jews ruling is a really a lack of jurisdiction or is it just emotional room which the immigration court has jurisdiction that has no merit the way that i have read the immigration court decision and the immigration court states that it cannot review or it cannot reopen because the statute states reopening is not available after an order has been reinstated so i believe that that would be a jurisdictional determination does that answer your question well i know what the judge said and i guess my question is more whether it's correct the judge did lack jurisdiction or whether this is a misuse of the term jurisdiction in a case where the immigration court has jurisdiction but just properly denied the motion because the statute serves the order is not subject to being reopened i'm not sure i don't know what the answer is i'm asking you i have thought about that but i haven't found it i haven't thought about it on those terms perhaps it would could also be seen as the immigration judge doesn't have authority to reopen because the statute specifically refer precludes reopening except that there has been that small exception found by the th circuit in morality skeered zero where the th circuit said that this other  portion allows for reopening in rescission any time that overrides the statue and so paralyses skeered o the th circuit even though that was a petition for review of the reinstatement and not of a motion to reopen did say that reopening was available in that small pocket but not generally as in all right thank you for your argument thank you mister sharma crawford you have some time i hear from your mom i think your what is particularly troubling with the agencies d or the century order but where a dot where in order let's say there is a constitutional violation and you seek to rescind that order based out of the bit because it is born out of a process that is not constitutionally sound if we accept the government's position that would mean there is no legal remedy for that posture of a case clearly congress could not have intended that because if it did it allows for the misuse and the misconduct that occurred in this type of the case in in mister gutierrez this case we know there was ineffective assistance of counsel we know that because by by the record taken as a whole and the carolina when addressing a similar issue in the context of an illegal reentry case sad ministerial representation is no representation and that's what happened here so you have a situation where we have evidence that clearly points to an ineffective assistance of counsel it is a fundamental violation of mister gutierrez his th amendment due process rights the statute that allows for for the final orders of review gives this court authority to address that and in fact the six struck it has found that that there are constitutional questions to derive a reinstatement process and the gross misconduct of the manifest gross  circuit so the question that's before this court is different than what the current precedent is and i would ask the court to review it through the constitutional question that is being brought forth all right thank you for your argument thank you to both