case nor that i'll need to use that much of this court's time this is because the problem as i see it is that the b i a rather than saying that it would not grant my client's motion to reopen instead said that it could s a had instead said that it didn't feel bound by paragraph nineteen of the a b c settlement agreement to honor my client's election for administrative closure because his appeal was late then there's no question that this court c step in and review de novo that legal determination and however the b i a instead said that it lacked jurisdiction that is the adjudicative capacity to even consider anything i would be curious what what the government's best argument is on this i don't have a problem if you wanted to save your time and to wait what it is and respond to it but i can't speak for my other panel members  morning your honour's may please the court you did your cohen on behalf of the respond attorney general why to address your question then just to make sure i understand the question are you responding to the fact that petitioner filed a motion with the group that's not disputed right that's correct ok appears to be the case based on the record ok but i don't understand or reading a paragraph nineteen which the a b c agreement as allowing the b i a to refuse to decide  request for administrative closure be squared with paragraphs one thousandth plain text which says an a b c class member may ask the emigration court or the b i a to administratively close his or her case  doesn't your reading read or the be i a out of the existence of the rules of the of contract interpretation and this court's decision and kelly garcia purses us i'd like to take this opportunity to as members of the class in a b c in order to allow the class members under a b c to take advantage of the rights under the agreement paragraph nineteen of the agreement provided that e o are the executive office for immigration review in cases where it has proceedings agreement indicates that nothing in the agreement shall be construed to forder right to further proceedings for those class members of the final order of deportation in this particular case mr hernandez did not requested mr closure in the course of his proceedings and his appeal became and started the immigration judge's decision became final at the time of the appeal right became once is time to appeal had expired excuse me so in this case because he didn't request mr of closure during removal proceedings because he didn't request administered of closure on appeal to the board he didn't request it in the time period indicated in the a right we filed a motion to hold the case in abeyance in march of two thousand and thirteen to determine whether sanchez that could be the case with which you also addressed the board's place of filing rule would have any effect on this case no petitioner opposed our motion afterwards petitioner in opposing our motion indicated that there wasn't fact no motion to reopen following this case and the government agrees because petitioner did not file a motion percent statute or regulation instead he filed merely an election distinction between the lection under paragraph nineteen of the settlement agreement in a b c and a motion pursuant to the statute or regulations there are certain requirements for motions to reopen or motions to reconsider pursuant to statute or regulations for example a motion to reopen must be filed within a time a certain time period it must demonstrate prime official eligibility so all has problems are procedural i mean that he would otherwise qualify his problems are procedural but it's important to make one thing clear it appears that he could have gone before the b i a but now you're saying he didn't do it in time so at every turn it's there's always yet some point you were eligible but now it just seems that your arguments keep moving for another reason why he can't get administrative closure had he filed a motion to reopen with the board post hernandez to the response would be clear that the board does have jurisdiction to consider that motion and has to address it on the merits whatever it decides but in this case a motion to reopen was not filed with the board and just because the government moved to hold the case in abeyance pending sanchez that could be as in light of the arguments in petitioners brief doesn't mean that the government's position was that this was a motion to reopen but instead it was that petitioner argue that this was a motion to reopen the government was willing to hold the case in advance to see if sanchez the cabeza would influence the outcome of this case and when petitioner opposed the government agreed that this was simply an election under the it was the settlement agreement and the board was not subject to the same rules it's subject to when responding to a motion pursuit the statute or regulation instead had to respond to a request pursuant to a settlement agreement all right so i guess now what you're saying is he can try to go for asylum but he rests losing that right but if what you're saying if he had filed in a timely fashion in the right place he would have been entitled to administrative closure for sure let's assume that's correct but but i'd like to make a point to put that in context the purpose of administrative closure it's not an end in itself it's a means to an end of the idea is that admission of closure would be available to class members and a b c to permit them to first take their request to u s c i s and once you are asked makes a determination then the case could be brought motion approximately one month after the board dismissed the appeal and it appears as though the immigration judge was not aware of the dismissal of the people so that the correct course of action now would be to follow a motion with the immigration judge should mr and as wish to do so during the course of proceedings as hunter what i'm sort of hearing he did timely do it he just did it in the wrong spot he did not timely requested mr have closure it was a timely request would have come in the course of proceedings in this case the board simply concluded that is is the appeal was untimely it was not going to take the case up on sort of occasion and then we kidded that any additional claims should be submitted to the immigration judge well and my understanding is the first time the immigration judge said there's without any you know it's the sympathy is not how i lead but it just seems at every turn whatever this guy per guy does someone tells him you're in the wrong place at the wrong time or whatever the immigration judge adjudicated their requests on the m denied asylum and denied in the car or relief so his requests for relief were adjudicated on the merits before the immigration judge and the immigrant the immigration judge suddenly just for no reason say there's no proof that you're even a member of the class the immigration judge indicated everyone agreed that he was the immigration judge indicated that the petitioner was not credible and concluded that the credibility was in doubt in this case but then proceeded to address the claims on the merits and concluded bleed into the immigration judges determinations on the merits of the applications immigration judge didn't believe the petitioner and said i'm not sure when you arrived in the country you provided no evidence regarding your date of entry i don't know but it didn't appear that in the hearing that it appeared that the government and whoever was representing him that there was no dispute that he was a member of the class and then the immigration judge on his or her own decided he why didn't the immigration to gesture did not decide that he was not a member of the class in fact if they meant gratian judge were to decide that he is not a member of the class he would have pre term of the application from the car or leave so the new car relief adjudication on the merits indicates that the immigration judge not withstanding the adverse credibility determination still said let's assume  unless he's been convicted of aggravated prone your honor let's be clear we're discussing two separate issues the first issue is the issue of administering closure and you're right if the alien had requested an ministered of closure paragraph nine hundred speaks mandatory language the immigration judge would have had to administer boot close proceedings there was no such request in this case instead the illinois requested relief in the form of a solemn withholding of removal protection on their cat and the car relief a point in this case because the a b c settlement agreement is a settlement agreement that was reached in the early one nine hundred ninety s and the kora didn't arise until nine hundred ninety six ninety seven when congress decided that it wanted to shield a b c class members requests for administrative closure when he requested administrative closure before the p r i and expressly invoke the a b c agreement as obligated to be mistreated likewise this case did you take that position i'm not sure that the government took the position it's certainly not the position in the brief the point that i'm making today is that the settlement agreement contemplates that those requests will be made in the course of proceedings and it's a matter of fact that he did not request that in the course of proceedings whether or not it's been waived there's no there's no to the president regarding whether that right can be waived although paragraph twenty one does indicate that once a final order removal is entered in the case there are no further rights to deportation or exclusion proceedings that's what paragraph twenty one says further supporting the contention that the a b c settlement agreement contemplated that these requests would be made while proceedings are live and ongoing not belatedly after the board of immigration appeals denies an appeals on timely goes up to th you just going by the language i'm going plainly by the language of the settlement agreement there are unfortunately very few b i cases addressing the settlement agreement and very few ninth circuit cases which address the settlement agreement fact very few courts have addressed the contours of the settlement and when requests for administrative closure can be made the board decision which addresses it was a decision which addressed an interlocutory appeal or request for administrative closure during the course of proceedings didn't even involve a request made at a later stage and so we don't have much authority and in interpreting the argument is the plain language paragraph twenty one that's correct paragraph one thousand and twenty one when read in conjunction with one another indicate that the requests are to be made in the course of proceedings and because mr hernandez was filing in election with the board upon remain from this court and not a motion to reopen this court's kistler law relating to the board's place of filing rule is simply an app is it because it address the board's jurisdiction to consider motions which are ruled by regulation and by statute and this selection is not ruled by regulation and instead it's ruled by the settlement agreement itself which contemplates that those requests would be made earlier on in time and mr hernandez can proceed with his request for asylum and de novo due occasion by us c i s as indicated interviews have been scheduled on numerous occasions and been rescheduled by petitioners counsel at his own request and so the fact that you are proud of these options act absolutely equal part is one more act and pages to him it would be advantageous to him i suppose to the extent that it would allow delay in his case if you wanted to mr closure but we were also going to hold the case ask the other side so what i'm asking you right now is there an advantage to him if if he gets administrative closure there is one advantage that he believes that there is in existence and the government disagrees on this not eligible for a second adjudication of in the car application the immigration judge already adjudicated it and so the only purpose of an mr of closure from the government's perspective would be then for him to have the closure to seek the  money and why are three of us is sitting here with something that doesn't matter your honor as an attorney for the government i'm constrained by the decision of the board i can't make a new decision for the board so well that's coquet that's the best answer i have for you i'm sorry if that's satisfactory for your honour's a over time here and so i don't want to use your hospitality so if you have no further questions we would submit on the brief and ask the court to dismiss important in one part the petition you your honors i feel a little bit like i'm in kafka's the trial because i'm not sure i understand the government's arguments and none of that was in the brief as far as i remember my posting counsel just said that he can't make a new decision for the board but in fact that's what he's attempting to do here he's attempting to give his reading of the a b c settlement agreement his reading of what he considers to be the plain language of that contract of the militia of contract that should be construed in my client's favor when the board didn't even talk about the a b c settlement agreement the board said nothing about the fact that it could only consider paragraph one thousand election if an appeal is timely it simply stated that it lacked jurisdiction and that that's why this is controlling here my posing counsel says no it's completely different hernandez had to do with a motion to reopen and this case has to do with an election during the pendency of a direct appeal but the point of hernandez is that the board simply can't disclaim its  in the same breath that it exercises its certification authority to go ahead and do that which it claims to be prohibited from doing and if you look at the plain language of paragraph one thousand of the a b c settlement agreement it says nothing about  when to request this before the immigration judge winter requests this before the board of immigration appeals it just simply states that upon request if the requirements are met the person has not been convicted of an aggravated eighty day is all about is that if cases had already been completed they had already resulted in a final order of removal then those individuals weren't going to get two bites of the apple they were going to be able  whether or not once having an immigration judge order for ever being considered the same as a pre nov thirtieth one thousand nine hundred cases well so what from your perspective why is having a ministry of closure poing as opposed to going to rackley to have to know asylum what what is the advantage to your client well the advantages the non adversarial proceedings first of all and if you've read the record i was able to get the transcripts in originally the sort of my record didn't even have the transcript you all saw how the immigration judge treated this individual you all saw how the government attorney in the same breath stating that oh yes we have his application for t p s oh yes he's registered as an a b c class member and yet telling the immigration judge oh he's failed to meet his burden of proof where's the proof that he was here in one thousand nine hundred his granted t p s application was granted on the basis of his california or arizona driver's license from one thousand nine hundred eighty and yet despite this court's decision invent the service never help this guy out by giving him access to his own bile but more importantly if you look at the statistics for how many new car cases the asylum office grants it's ninety percent and if you dig if you drill into that ninety percent that ten percent that aren't granted it's because there was a mistake in accepting the application when there was a fine order of there some disqualifying criminal conviction before this immigration judge my cl at that moment was not going to be granted a car relief from the exercise discretion even if the judge hadn't also determined that he was statutorily and eligible now it's been over seven years he hasn't really offended if he could get his proceedings and mr to be closed he stop that car education i don't see well at this point the asylum office won't accept the application because there is a fine order which is under review which is the direct appeal that the b refused to even consider if the proceedings were administratively closed then the regulation is clear in the opposite direction of what my opposing counsel just said that because there hasn't been already a request to recalibrate mr tiddly close proceedings as this is the first time the proceedings have been closed the asylum office has jurisdiction over that new car application the agency has separate responsibilities and there's nothing ice could do to prevent us c i s from adjudicating that application and again i don't see what the harm is to the government if he's again denied a car and the exercise of discretion by the asylum office they'll proceed on the asylum application if he's denied that asylum application then d h has simply just recounted the advantages you think that when a car application there's more of them that are granted number one grants more than the asylum office right it's it's a pretty sure all is a pretty sure thing it's like i used to work for the asylum office i've had plenty of cases where an individual had