good morning ladies and gentlemen and welcome to our court at the outset judge newsome and i wanted to welcome introduce to you and thank for his efforts our visiting judge sitting with us this this week judge moore has sat for many years with great distinction on the district court in the southern district of georgia he was appointed by president clinton in one thousand nine hundred ninety four and has served as i said with honor and distinction since then he has been the chief judge of the district court there as well who were delighted to have him sit with us and bring a world of experience to our undertaking second i want to just to make two other brief observations before we began  first is as you proceed with your arguments you can safely assume that we've had a chance to review the briefs the record excerpts and in many of the instances we've had a chance to look at the record itself so feel free really to go right to the to the heart of the argument in the time you have and third for those of you have not appeared in our court before you'll note that there is a  lighting system in our clock there in the lighting system as green which means go yellow is a two minute warning and the red light means that your time is up so when you see the red light come on if you could bring your remarks to a conclusion we'd be much appreciative we're not asking you to stop in the middle of a sentence or something like that but if you could bring it to a conclusion we'd be much appreciative with that we will proceed with our first case this l good morning on a boat judges my name is yelling tonight live in due process because it deprived him an important immigration benefits the right to adjust his status to become a permanent resident into united states if follows that list can i ask you a just a factual question yes i do have it right that on the ninety three asylum application mr len filled in e w i in three without inspection and then didn't provide the initial ilian registration number and if so why is that where he was not represented by counsel in our motion to be opened to make it clear that he was best descended by the the one he was ticking at the time a rifle and the one we took at the police department and so why was it that the this gets to another question i have why is it that the fingerprint evidence was not available to you in the two a procedural question if if i can you raise several grounds constitutional claims where those claims perfected before the board of immigration appeals but yeah we did a i understand that you alleged abuse of discretion right but your claim is more precise and specific here you raise a variety of claims including among others that the fifth amendment due process clause was violated yes in the process that was employed here did you urge that basis before the board of immigration appeals say our fifth amendment due process rights were violated because x y and z and if the answer is yes can you point me to where in the record i would find that we did not c your challenge to the nine hundred ninety seven removal order the reason i raise the question is that you never took a timely appeal as best i can tell from the initial removal order nor from the first or second motion to reopen which were denied you did not perfect any appellate process and on the third iteration you want us to go back if i have it right and reconsider the wisdom of what they did on round one and two do we have the power to do that i believe so yeah i and because of that the and also the first a motion to be opened was not done by a lawyer that should not even have been counted to begin with right the reason i raise it is as i looked at our case law we've got a fair body of law that says something like this we said this in a case called jacks mn versus the attorney general we said and i quote because we conclude that the earlier order of removal entered by the board was final that the petition to decline to pursue a timely petition for is review and in the second appeal to the board failed to exhaust his earlier arguments we must conclude and hold that we lacked jurisdiction to review the earlier order and we've got a number of cases that basically say that if you had an opportunity to appeal from something to be i did and you didn't on round one and you didn't on the round two and you didn't from the initial order of removal then you procedurally cannot come back to the court of appeals and say we'd like you to revisit that opportunity to peace and a case i believe that this case at your government is much more goven case here then the other cases let me ask you just one final question and we're not go think is properly before this court is you say that the board of immigration appeals decision did not offer quote reasoned considerations of the of the c i'm not sure i understand why because when i looked at the be a order they offered the following russia now maybe it's right maybe it's wrong but i don't have any difficulty  in review understanding what they did and why they say and i i quote the immigration judge's order of removal was entered in absentia on december the twenty third one nine hundred ninety seven feb eighth two thousand and sixteen the respondent filed his third motion to reopen the immigration judge collect correctly determined that the motion to reopen was untimely and numerically barred under the general motion to reopen statutes and regulations and then they cite to the i and a and to the regs and then they offer a third reason they say not only is the respondents motion numerically barred as it was the third motion to reopen he had filed but it was filed more than one hundred eighty days after the immigration judge's decision ordering the respondent removed  to the appropriate c f r and then they go on and offer a still an additional rationale as i read it we agree they are right but the immigration judges determination that the respon additional arguments in its third motion to reopen were not new or previously unavailable so as i read the order they've offered three reasons maybe they're good reasons maybe they're bad reasons but i know what the rationale what's one the motion to reopen was on time really wasn't far within one hundred eighty days two it was numerically barred under the statute and three the motion to reopen there was nothing new or previously unavailable on the third iteration that wasn't available on rounds one and two can i exercise a of the attorney general right that's the case you cite in support of the argument that they didn't consider the crux of your argument i see nothing in sec that announces a rule that the be  a must address what you characterize as the crux of every claim and second sack look different to me because it was a direct appeal from an order of removal where the argument against removal needed to be addressed there was not as here an appeal from a motion to reopen a subject which faces different and higher procedural hurdles am i missing something here i believe that  legal consequences where there is the whole number and time limitation apply and this the cases cited got to the government to justify the fact that the attorney general has discretion absolute discretion to  just status in the united states his right has not been trampled i he has the right had not been deprived so at this point i have not seen any case law that shows that under this circumstance  there please the court victoria braga appearing on behalf of the attorney general the court should deny the petition for review in part because the agency did not abuse its discretion in denying the motion to reopen as time barred number barred and is not presenting previously unavailable arguments or evidence the court should dismiss the petition for review in part because the petitioners challenge to the agency's decision not to sue a sponte reopen is an issue over which this court lacks jurisdiction but it does not raise any legal or constitutional issue to restore jurisdiction considering first the reasons the court should deny the petition for view this is the petitioners third motion to reopen and ask you a just a factual question sort of rewinding the tape to ninety seven what happened between one nine hundred ninety seven when he when mr leno's order removed and two thousand and fourteen like what was going on during that time was there an effort to remove him or no and if not why not i just wonder what happened in those intervening nearly twenty years when mr lennon was ordered removed in absentia in december his notice to appear and also the order removal i think was returned as undeliverable he did file a motion to reopen in one thousand nine hundred eight that's the motion to reopen that does not track the record but in that motion to reopen he does claim that he was living in new york and he provided a new york address when the motion to reopen denial was mailed to that address it was returned as undeliverable so in the period government again did not know where he was and did not could not know where he was until two thousand and fourteen when he came forward and filed his second motion to reopen so it's only really since two thousand and fourteen that the government has had an resurfaced you guys he was and between two thousand and fourteen and now he's had multiple at least two motions tree open pending and the immigration judge in denying his second motion to reopen as you honor said which is not properly before the court does make a reference to the fact that between one thousand nine hundred seven and when he was with her graham moved ninety seven when he was ordered removed in two thousand and fourteen when he came forward he was i think the immigration judge calls him the fugitive from justice kind of indicating that the government did not know where he was during that period so mr so the petitioner's motion to reopen is number barred in that it's his third motion to reopen it is also time barred this motion to reopen his third was filed in two thousand and sixteen that is more than eighteen years after he was ordered removed and normally there is a ninety day deadline that applies to motions to reopen circumstances present prevented his appearance at the hearing at which he was ordered removed mr allen has never claimed this to apply and even if he did his motion to reopen was filed well outside also the hundred eighty day deadline there's also an exception to the time bar apply the will to motions tree open if an alien who is removed in a century as the petitioner was claimed that they did not receive notice of their proceeding  it's not until the petitioners before this car court that he makes any sort of legal challenge to the notice that he was provided he does in his second and then also this motion to reopen reference facts to the notice that he was given however he never makes a legal argument about why this notice was insufficient as this court has said in a two thousand and eleven unpublished case lire carrillo which is cited in our brief it's not enough to simply reiterate facts to the agency and the agency in order to make a reasoned decision needs to be presented with a legal argument and mr lynn has not done that with regard to notice so it would be improper for this court to assume jurisdiction over the notice issue as the agency hasn't been given a chance to address any sort of legal arguments related to notice what's the government's current position with respect to the fact whether mr lindh was or was not paroled into the united states in one thousand nine hundred one your opponent says this whole proceeding is based on a fundamental factual error and what's the government's  or there has never been to finding by the agency that mr lane is the individual who entered into the united states in one thousand nine hundred one the board does in affirming the immigration judge's decision reiterate the facts as stated lynn however the board does not have fact finding capabilities so the board is on able to find that he is the individual that entered the united states in one thousand nine hundred one as petitioner has conceded today however even if he is the individual that was issued the form i won twenty two in one thousand nine hundred ninety one there's no evidence in the record that this form was ever filed in immigration court and the regulations are clear that exclusion proceedings only commence when such a form is filed in immigration court so to the extent that is the same person who entered in one thousand nine hundred one he was never placed into removal proceedings and then as has also conceded today having not been placed in exclusion proceedings it does lie solely within the discretion of the department of homeland security to place him into removal proceedings in one thousand nine hundred seven the petitioner did say during argument that no court has ever addressed facts similar to this but there is a case cited in our brief it's an unpublished case from the third circuit and the name of the case is also when it was decided in two thousand and fourteen and the facts are very similar  that case entered the united states and was issued a form one twenty two that form was never filed in immigration court the petitioner was later placed into removal proceedings and ordered removed  later filed a motion to reopen and challenge that he should be in exclusion and that removal proceed things and the third circuit provided that they did not have jurisdiction over this issue because the court doesn't  challenging the propriety of her proceedings was to appear at her initial hearing and challenge the charge of her movability as applied to her and the commencement of her proceedings she failed to do retains jurisdiction to certain allegations of constitutional violations and there was a case out of this circuit in two thousand and seventeen  if that's a correct pronounce nation bursley attorney general where is there a well the petitioner argues that she's raising a due process claim regarding the propriety of the commencement of removal proceedings however the government argues that this is not a color ball constitutional claim she's simply challenging the department of homeland security's placement of the petitioner into removal proceedings which is an issue over which the court does not have jurisdiction so there is no possible constitutional claim or oppression of law over which the court has jurisdiction the petitioner is simply asking the court to review the board of immigration appeals decision not to process constitutional violation yes we do you can see that if there is a constitutional question or legal issue raised the court does have jurisdiction however the petitioner in making her challenges to the denial of the motion to reopen does not raise any constitutional question or legal issue over which the court has jurisdiction what i'd like to have you tell me is why we have no jurisdiction over the constitutional claims that he makes is it because he failed to exhaust and if he had exhausted the b i a had the authority to decide those procedural issues i'm not sure i understand what you're saying if you could tell me why we have no jurisdiction over the fifth amendment due process claim that he's asserting well to the extent you may you have jurisdiction over due process claims our argument is that this is not a meritorious constitutional claim that's not saying we don't have jurisdiction that's just saying going to the merits he loses yes and i understood the argument to be we don't have the power to entertain the matter in the first place and i thought the reason we lacked the power was that he had failed to exhaust those claims which fell within the board of immigration appeals there for he failed to exhaust and he was obliged to exhaust that before the b i is that the reason that i misunderstood that no you haven't misunderstood that those claims were not raised to  administrative form that had the authority to decide that particular constitutional claim correct the board of immigration appeals would have been able to issue a decision on whether or not the petitioners due yes and the board with regard to those claims and as your honor said in its decision did say that none of the arguments made were previously unavailable so to the different kinds of constitutional claims being raised here and and do some of those fit within the b a s jurisdiction to adjudicate and some don't i mean it seems like there's a you know there might be kind of a sub claim here about the agency not following its own procedures there might be a sub claim here about the you know the fact that the proceeding is based on a false fact there might be a sub claim here about you know i'm not receiving notice of those or those all in the calling legal or constitutional claims and the petitioners categorising is due process claims so the b a a to the extent that it can review the agency's actions and the agency's actions with regard specifically to this does have jurisdiction to consider whether or not he was afforded due process got it put differently if the arguments that are made if i have it right are procedural errors that she claims constitute procedural due process violations in violation of the fifth amendment but because the nature of the alleged violations or the kinds of procedural issues falling within the can of the be a the exhaustion requirement requires her to have raised it first with the b i do at that right yes petitioner should have raised her due process arguments with the board of immigration appeals and aside from claiming that her proceedings were not properly commenced she failed to exhaust any legal argument with regard to due process before the it was his actions where he removed himself where he moved from location to location and the government did not know where he was doesn't he doesn't he have to stand the government did not never dispute the fact that len came into howie and basically right now would be african for a mission and the government never never disputed that fact was just briefly with respect to the argument that he never received notice is that wasn't your client's testimony over the years sort of all over the place about this he said he did attend the hearing then he said he didn't get notice because his employer failed to tell him  much thank you both there will proceed with the next case national union fire versus american gun and liability