watching thank you your honor i think the very first issue both in the order of the briefs but also in order of the arguments is whether this court has jurisdiction to hear the motion to terminate whether this court has jurisdiction to review the board's decision that it didn't have jurisdiction to consider the  argument the as to why the judge should not have granted the government's motion to terminate this court has a number of cases where it's rejected jurisdiction to to question the or the immigration court's authority to grant the motion to terminate but all those cases seem to have one factor in common and that is there was an executed prior order of deportation order of removal it had been executed which would mean that the governor would have to reinstate that old order before it could execute that order again so that we have indoor american base make that distinction they make a very explicitly it's not implicit in these decisions that they're reaching those decisions because there's still a process that has to be gone through before the final order of removal can be executed disagree that may be the wrong term but it's the one i'm going to choose i do disagree with that because the effect of this term a nation is that order of deportation that old order of deportation becomes chest so while the court has jurisdiction as a general proposition without being able to cite chapter and verse neither i c r o nor even in many instances us c i s will take an action while the jurisdiction over lies with the court now in this particular instance don't forget your honor we had a representation being made by ice that they were not going to use the old order of  that was on the form i two thirteen where it said were aware that there is an old outstanding order of deportation but were opting to proceed by issuing a new m t a anyway and that is a paraphrase well it hasn't jumped out at me i had to respond to that on my rebuttal your honor i will find it for you i apologize that it's not a fingertips but there was an eye to thirteen that said they're opting not to do it that was the problem is and this is the issue that i love to me and i apologize for this to me i think the jurisdiction is there because of the language used in the uk how in the linda that's the only reason that they're saying we don't have jurisdiction is because the deportation order would have to be reinstated and it's not automatically effective upon termination i can't really hear this yes but you know you dress up your issue when you name an equitable stoppel because it's really an argument that  is a that is a non technical phrasing for what i'd like you in the district or what i'd like to accomplish to get this case reopened yet so that we can go through with with an application in this case would be for withholding information to the immigration service in the form of an updated address or to monitor the case himself to do something don't you think that undermines an equitable claim that you want to assert motion to reopen and that's why i'm saying in a lazy sense it's what i've accomplished but in the tech sense that's not how i'm trying to accomplish it so i do know that i'm down to my two minutes which i was referring to question ample time for a bottle i appreciate that thank you so much on it but i think but i do think that they are separate issues even if the result turns out to be the same what concerns me the most is if the if is if the court is saying we don't have jurisdiction over over the issue of that could have will stop then we do wind up in a in a in what i've been describing in conversations as a donut hole where this is an issue where the without without saying i've got the  where i am saying i've got the facts where it without making that argument here where where we would need evidence or hearing we'd be doing this by hey b s but then realized yeah comes along and says you can't so how am i going to raise equitable stop good morning it please the court just like a doctor for the government the smart and the court should partially partially dismiss this petition for a view because there is no jurisdiction over the order terminating their move the proceedings the court cases and and going to her marrow are very clear that the final an order terminating proceedings is not a final order of remove all although those cases do have the factual distinction of that they involved expedited proceedings or reinstatement proceedings those factual distinctions aren't relevant here as a matter order in the earlier case i guess one nine hundred ninety seven removal order does that spring back to life after only after the proceedings are terminated your honor the best site that i could find for that one preparing for this argument was the regulation at c f r one hundred and three point  wo and it and it talks about jurisdiction and vesting with the immigration court upon the filing with of an n c a a and so the best that i can find was that under the  that is it's a far to thirty nine point two that once the jurisdiction invests with the immigration court upon the filing of an n t i the only way to get out of that is to terminate the n t a and that's a by motion and that's under that  thirty nine point two and under that regulation there's i believe seven numerated reasons why and he could be terminated the sixth one is if the n t is improvidently issued another one an example would be if somebody left the country and was no longer in the united states in the us a notice to appear for removal would be unnecessary so so your position if i understand it is at the administrative terminations of an n d a is not itself we would have jurisdiction over line is is that the statute is very clear it has to be a final order every move on there is no finding of a movability and the termination order what would it take to enter a final order of remove ability i mean if we rule in your favor basically we say we don't have jurisdiction it puts it back in your court so what would happen then in terms of a final order or is it just a stone's throw away no well there was the final order that's why this these proceedings are terminated is that there was the final order of deportation from two thousand that's how the court decision it and this is are any further steps required other than the termination of the erroneous proceedings  to make that final order implementable not that i know i have to say i think as soon as the jurisdiction is no longer with the immigration court then the order is executable for the best that i can find in my case law and and discussions with other attorneys and immigration judges and trying to figure it out i've never heard of a case where terminations motion has been denied my understanding is that's a procedural mechanism in order to get the case out of the immigration courts jurisdictions that the order can be executed you know maybe i should know the answer to this but i don't assume that the prior deportation order is alive again i noticed that he originally had a voluntary departure is that still available to him or has he lost it at it's at this point it's lost by expiration for at that you can hang on to it with all kinds of appeals and various things and so on yeah this is the does not necessarily expire of  ever ninety days or whatever but you knew he was gone and i believe so i would have to look back at it rags from two thousand and i know they changed a couple of times in that decade in my best recollection at this point is  it's expired i don't think that that's an option and and without going down the rabbit hole i think i think the record is pretty clear that he although he was incarcerated at the time the board's decision was issued he was out of incarceration eight and it's one sixty five a third thirty five and in that case the court talked about recognizing that you are has no authority to apply equitable stoppel against the then ins and that any constitutional claims about that must be raised in a petition for review of a motion to reopen and so the vehicle to get those claims before this court would be in a motion to reopen and then raising it there there may be other  issues than volves with brazing of suicide to motion to reopen and and again those are presented here but there is that safeguard that those are there are ways to make those claims and have them review it it's just not the sleigh it's not in the nation order your research so is that impression correct or do you deal with this a lot i've seen it before it's not something we deal with frequently it is a very steep hill to climb there has to be affirmative misconduct in that case law is very well established specifically say that ice opted to follow the final order it just says upon review of database information it was determined that subject was amenable to d h s ice and for some action with the following status quo one final order so it acknowledges that there is a final order doesn't say that they're opting to follow one way or the other and issue an n t i those that's that's drawing words from that that that document that aren't there and then the other page i just would like to refer to is page five sixty eight of the record and that's from the november fourth two thousand and fourteen hearing and that's at the point that do you just realize that this or this prior order wasn't executed  if you read through the transcripts and the pages kind of surrounding that site it talks about how do you just have been operating on prior master calendar hearings with the temporary file so it had the two thirteen but it didn't have all of the documents in the file at that point the agency was operating on paper files so they didn't have a lot of the scanned in documents that they might have now and it didn't have until that day the hearing the entire file and it just was a realization in the middle of the hearing so i think to allege affirmative misconduct under those facts is a far cry h s attorney goes to take over freshening in line five on page five sixty eight it says the u s attorney says i do have questions i'm just a little troubled with the procedural history in this case and i wanted if we can just discuss this for a minute between a moment between the parties and then they go back and forth about whether or not what the procedural status was of the case and and over the next couple of pages he talks about not having left the united states so they realize that the order was not actually executed and it becomes this oh wait there is not an order that we can restate reinstate it's not like alcohol or go under a marrow where we haven't executed order and we have the discretion whether or not to reinstate it and execute that we actually have the order and the order he wasn't executed so we still have this good order out there that we don't need to do anything to enforce let's just get rid of these proceedings and enforce that order it's not like i have to start a whole nother proceeding to get a different order and that's really what happened and  going let me just start by saying i think i believe there's something that i two thirteen that indicates a little bit differently where it says an able to obtain removal documents so the subject is being processed for a notice to appear but that is actually my point this is an evidentiary issue this is not a court that's supposed to be taking evidence if the board and the immigration court are going to say we have no jurisdiction to consider in argument of equitable stop at what point there is evidence going to be presented that the government should be equitably stopped because they acted with affirmative misconduct that's not a decision this court should be able to make or should be asked to make in the absence of an evidentiary record on it and yet this court itself has said we have jurisdiction the equitable strike that equitable stoppel does apply in immigration proceedings and this precedent this court were equitable stoppel as a concept has been applied to removal proceedings so the question so the question here is is the board correct when it says we don't have jurisdiction to hear it now in a pre real idea world i'd say fine we have a mechanism in a post real act world i don't really feel we do not not to have an issue like this which is which is evidence bound and ultimately a fact based determination where you've got no  so just let me pick up a miscellaneous point as long as i still can the factual distinction that that that's made between look we're saying we don't have jurisdiction because it's not a final order because they still have to reinstate it now that is your two minutes so he'd like to see if you'd like to sum up a huge factual distinction because in reinstatement you can get a reasonable fear hearing and you're  reasonable fear interview and a reasonable fear of you you can't do that where it's just