is required mr morgan has not been cross examined mr morgan has has knocked on three different courts doors the immigration judge the bottom gratian appeal to the federal district court each court we have not found any satisfaction we've been able to develop because as as the government argues in this instance as well he should not have his day in court basically a due process rights are being abrogated at every turn is your theory promis did not address the issue and we did raise the issue of the s p c that we believe that he's eligible for at any point either before the immigration judge or the board of immigration appeals did you make an offer proof on your issue of promis mr morgan that he could stay in the united states indefinitely the affidavit from two thousand and three mr watson was this mr dunbar submit it indicates that there was an agreement and that mr morgan did perform on that agreement so he did provide the government with critical information that an affidavit doesn't seem to say anything about the deal we made at the time was such and so that the affidavit indeed speaks in terms as the to there was this agreement i see descriptions that say it was your client's understanding that this is what was going to happen but that's not quite the same thing i think is what you need for promissory estoppel exactly the reason why truth of everything that's in the former u s attorney's affidavit or even the arguments you've made it sounds like he cooperated with the government and helped them in the past thirteen years ago or so twenty or twenty years ago prior to the i j a hearing but i couldn't find anything in there that indicated that someone from the government said you can stay and live here indefinitely and there is no way to do that isn't there and there's a formal process by which a person in mr morgan's claim circumstance can obtain relief from the government right correct through the filing it's never happened that's never happened and there's been no one that has come forward who has has knowledge of what what mr morgan did to to begin that process of filing out the i eighty f our and why the remedy of the special master as opposed to the district court there is a there's a statute that allows us to transfer cases to the district court when a hearing is we believe that  genuine issues of fact exist on the administrative record and the hearing wasn't held before the agencies why not use that statute as opposed to a special master but we have we have requested and in the end the government has your argument you've got about two minutes for a vote will hear from the attorney general at this time the morning your honor may it please the court my name is adam mclaughlin and represent the respondent attorney general of the united states in this case although on some levels it almost appears that i could appear in front of you as i did yesterday and offer you the chance to have me sit down because there is no issue remains because this court is bound by its part precedent there's a little bit more to this case so i think there's more the need to address in front of you mr morgan is an aggravated felony drug trafficker who never sought any relief under the immigration statute or frankly any other stat never sought any relief in this case he has requested the court simply create really for him i've whole cloth based on a substantive constitutional right or ignoring the court's prior precedent in this case there simply is no evidence of danger supporting a state created danger claim and there is no evidence of any agreement a written agreement of any kind much less an uninvited u s written agreement addressing the issue of his permanent presence in the united states how could he develop reason is that they only have they can only exercise i think the discretion given them by the attorney general and that does not include findings problem that's what the courts so these fabricated claims cannot be developed in my view nor would have been relevant to a application for protection of the good educates torture and he could have made that and it would all be in the record and all of the relevant fact finding up to the very alternate decision would be in the record and would have been made for you the second answer is b and in most courts and there are some key i can't remember the name of the case and where this court addressed this particular point because the issue can be considered by the board in connection with its other over in connection with different implications than the claim that the the board of immigration appeals can educate adjudicate that is the the obligation under the statute to provide a fair hearing but the b a a has equated the two under an authority that already exists and it uses a sensually the same standard not completely the same standard as this court might apply but essentially the same standard and in that context the v i i takes the evidence considers the evidence makes it virtually every fact finding that this court would require and that's the and that's appropriate give another example well but it doesn't happen in these kinds of cases i understand what your argument is but here's here's the problem i see more globally with the real id act and that is  it used to be when the heaviest jurisdiction was in the just record the district court could develop the facts when necessary it's not always necessary sometimes you can do it on the bare record but when it was necessary the the district court would have an evidentiary make findings and then that would me because otherwise i think there's a real constitutional problems with the real i d act so how do we avoid that the first point is history stiction is it is limited to issues of law so we're talking about them so we're limited to you know we're not dealing with issues affecting discretion for the most part well that's that i understand beyond that take it let me give the other example and the other example is is the american arab supreme court case example in which the united states solicitor general stood up and said in the situation where you actually have a constitutional violation of this kind a selective prosecution argued as applied you don't want that to be raised in front of the board because the board can consider that as part of its analysis and under under issues that are other actions words are and it's a very i guess what i'm suggesting to you though on a more global level that there are some kinds of cases this may or may not be one of them in which the board just doesn't have the jurisdiction and it rejected the constitutional claims here not  merits but saying we don't have jurisdiction over so if the more doesn't have jurisdiction you can't fault the petitioners for not developing the kleine just seems to me now this may or may not be one of those cases but it seems to me that if we were presented with one of those climbs the appropriate remedy for us rather than do our own fact finding which we're not empowered shouldn't do is to use the statute transfer the case the district court to make the factual determination and then hear it on would you agree with and observing that in this global it doesn't exist just as a global principle like the united states recognizes that there may be circumstances that arrive where a genuine issue of material fact remains that needs to be that for which the fact needs to be found our position is that under twenty three forty twenty eight u s code twenty three forty seven b to this court can remain to the board as an executive agency to continue its fact finding and reach findings of fact on specific points even points that the board to go to the district court and that's why we adopted that remedy and alvarez because we can cite fact finding and if that's around money that your door saying that's fine but somebody's got to find facts that the board can't do the ultimate decision making involved but the board can find every fact up to the point where you get to the point where as this court described and in the ramadan case where you are essentially you're left with undisputed facts and all you're doing is applying the law to it so it would be the default point would be the harm in this case for sending it to the district court for a hearing in this case there simply is no evidence left to be found first and second there's no law to support any theory on the basis of which sounds like your response as we state created danger and claimed that frankly shouldn't be recognized by this court as the courts in the first circuit in the third circuit have had discussed in one way and come our so our position is and that's the ultimate that's the real reason that we feel we're here today to to get this court to uphold its decision in thomas and to get this court to agree with the courts and one woman camara that there isn't a place for the state create a danger claim those legal issues disposed of there is no reason to set it back beyond there's simply no point in this case in remanding this this is so far beyond i wouldn't be surprised if there was such a document montana according to the this is evidence from the district court record not from the record in this case none of that indicates that no such agreement was entered into and no such written document would have been entered into it if anyone had asked it wasn't appropriate in this case because mr morgan's conviction had was already complete he was on probation at the time and he was approached to all the transcripts were were no longer there so there's there's definitely a lot of information that needs to be ascertained so i completely disagree with with the government on this point in fact there is no the government ha produced the that that piece of that that document where the sentence was was reduced but it that if there were written agreement your client should have had a copy of it right yes yes i mean you've been unable to produce me looking back at it probably what happened is that there were some perhaps general assurances made to do a lot of them maybe will take us into consideration and the immigration proceedings or something and and and they relied on those but i don't know if that's enough to get