nodding as well so i guess from that standpoint you obviously want to follow it and i think the government's position was that they think that it's a prior panel that  obviously has priority to this panel at this point but they think they've got it wrong and they're petitioning for rehearing and i think for on bank review where things along those lines so i guess with that in mind you've got your original arguments and then o granted voluntary departure which entreating order to move because they do not have that authority so that would be an additional issue is very much along the lines of finding already in  case it did not have the thirty to enter a voluntary departure order that is partly why should you complain about the first of all the board doesn't have that authority it's in some instances and this is now a fairly new issue in some instances voluntary departure does not make sense for petitioner and that's a decision they have to make to for example should they have a family member that would be able to petition them  but isn't it kind of the fundamental rule of the palate practice that we address what you would what you bring to our what you bring to the fight he can't bring out things for the first time on appeal and then expect the others i mean for the first time in oral argument expect the other side to respond and expect us to respond so i guess what i'm asking you is this the first time we're hearing this argument it's a speech really in the briefs i would raise it in that and not whether it's someone could it's contained in the court my name is jason but till i represent respondent united states attorney general john ashcroft i would like to focus my argument solely on the remaining differences between our letter brief and the petitioners letter brief since pursuant to this court's request to address the impact and we are we are very close together on the majority of issues in the case which no longer need be addressed in the first respect petitioners letter brief and request different from the contents will be subject to the ultimate approval of the solicitor general's office and the civil appellate sector at this point i may represent to you that the respondent will at a minimum contend that at least one error committed by molin a camacho is the determination that the case be treated as a hate us petition and transfer it to federal district court instead of being remanded directly to the administrative agency in order to afford them the opportunity to correct mean we have to you it means said that the b i a cannot issue it in the first instance since it is it is part of that decision require us to treat it as a b s or is that just something that that court did i mean in terms of what you're saying power to manage manage its cases on its dockets in order to maximize time and efficiency of the parties but to position in their letter brief that this case should be transferred now in order to prevent delay is an argument to rename the case back to the administrative agency which means the petitioners regime would be from the court of appeals to the federal district court to the administrative agency whereas assuming the and will not be prejudiced in cleaning way because there is not a clear indication that there would be more meaningful to lead if the stay were granted on the government respect especially requests that the based on in this briefing and the absence of specific authorities cited with respect to voluntary departure the respondent is not able at this time to concede the argument that the board erred in the first instance first time and you can't come into an appellate court and just decide to make an argument that was never brought up in your briefs i mean that standard appellate work that you wouldn't want to be surprised that way  you to do that to someone else if the court what judge with saying if the court decided that was something that we needed to reach that we would allow both parties to supplement only brief that on that and we would be in contact with you that way all right thank you very much and again thank you just one moment i have to court will call the next matter on calendar which is navarrette versus ashcroft case number zero two seven four three five five that matter is submitted on the