he claims that he's a u s citizen but has been denied his day in court to prove that claim the real i d act of two thousand and five has cut off the right of habeas corpus to challenge removal orders and the only way if he does have a right i'm saying is saying that the falling within a gap where they had failed to exercise their right and then the statute had extinguished it and the court there held that the thirty day would in fact give them an additional thirty days to put them in the same place on the same footing as  petitioners after the act was passed and so it wasn't in saying the court wasn't in saying that thirty days was a reasonable period opining on the adequacy as a substitute for hay vs but rather as an extension of time  adjudicate what time period would be sufficient but merely to find that thirty days is not and again the principle guy posting at play here courts have held that the one year period in that context is caution constitutionally suspect and the only reason it was upheld was because perspective client for saying that thirty days is insufficient because he hadn't really pursue his rights in this matter in the first place well your honor our  well i mean either he was on time or he wasn't isn't that right oh i mean is there another way that you can know about this to avoid challenging the real  unconstitutional as applied to mr tom because because it would prevent him from receiving judicial review of his citizenship and anybody who this is not i'm in it well will be prevented  odds the government argues that the options that are available or substitutes here are form and six hundred citizenship application and a motion to reopen and we would submit that they're wrong first as a matter of law that you know that was i was going to say do we have that your honor it's not unfortunately in the joint appendix because he was thomas representing yourself prostate you know we're happy to provide and i can tell you that it does not award custody to his mother which is one of the country that that  so i don't know if he's argued in those terms but certainly the question of tom's nationality his citizenship was something that he raised throughout the entire proceeding something that shows that he was in the legal custody of the father at the time that separation before he was eighteen and you've got is of a u s citizen and he can't be sent back which is simpler than you know i think you can sense the fact that we're not super to reopen and we would have an opportunity to do that tom would welcome that but judicial review really is the touched on to check on executive power from deporting us citizen if we depend on the agency to tell us  he did not leave the country i don't know if there may have been a time when he was at his grandmother we just haven't had an opportunity down into that in the picture but i always regardless of recall some facts of the case you missed the thirty day filing  action may be institute in any case if the issue is a new person is that it is a national the united states arose by reason of or in connection with any removal proceeding under the provisions of this chapter or any other rock and that's the situation here there were making you know we made no are we there logically in this case makes a certain amount of sense that given that he does have the avenue of going back filing a petition to reopen again if that's denied seek review under twelve fifty two of the denial of the motion to reopen  you terminating whether or not this guy is really a u s citizen how is it in the interest of the united states to create a scenario where because of the hoops and hurdles ahead for the real id act they may end up deporting someone they have absolutely no should control due to his parents one hundred eighty eight divorce likely because the divorce to create awarded custody to his mother now i don't know whether that means that nothing was presented but he's indicating that hussein had not raised the argument that it was everybody including the folks of the united states why not just send it back to the bia in determine whether or not he can show his us is a cancerous us citizen that may well be the end of it if he can show his us citizen that gets before well if he has a new claim based on just you know this argument about custody of his father and his father's naturalization which predates the mother's then that was not raised that wasn't raised in this proceeding then that means arguably on his part it's not barred by fifteen zero three a one because it did not arise in the context of the removal proceedings on the other hand before we get there when this there's an underlying jurisdictional problem here that gets to the question of whether you want to be ruling on the constitutionality of a statute in a case where you may not may not have been any jurisdiction i would have to consult with with main justice in washington they they've all done deal for their policy reasons they don't allow the the rogue's in the u s attorney's office is to go off on our own and so i can't commit to that at this point but what i did want to somewhere in his papers before the b i a because they refer to it as kind of offhand way and that there was no argument made about it so i don't know why they would say there was no argument made about it if you didn't say something about it but why discuss it at all prove citizenship i don't later and later perceive his speaking speaking philosophically i don't see why it would be you know with all the considerations that have been raised by this panel to the this appeal he was in the custody of the state of new jersey serving a criminal conviction sentence if he was not in the custody of by the state and won't be picked up until federal pen dick seventy seven and zero five decision unreported from from this court does say that if a prisoner serving a criminal sentence he's not in ice custody even if ice had lodge detain or i don't know if it's in the record whether there was a detain or in this case being correct but i mean we've made this argument before and i don't know that there's a presidential decision holt from this court holding otherwise but if he's not yet in federal custody what he's saying is in there would be yes there would be no jurisdiction to entertain a petition based on a challenge to federal custody if he hasn't is but most of the file by people who are in i think there are usually the immigration ones are filed by people who are either in the detention centers or in a state jail being held by ice pending i don't think it was part of the record in this case so i don't know if he had a few years to go on his sentence which i think i thought he had a projected release date of two thousand and twelve unless i'm confusing that with another case but  friday rule sixty of the federal rules of civil procedure about which is koran nobody's color valby said a lot of other old writs in civil cases that's why all the cases that i that you can find on  argument the government raised before and it really doesn't have any practical effect on on the case secondly as you could tell from the government's argument and their reluctance to agree to not to the court yet but we would i would prefer not to have to reach the suspension because if there and any possible way process and you know he was representing himself pro se and so the arguments may not have been made as clearly as they would have with the benefit of counsel for this appeal yes that's right and  on the b i a record i know there are some colloquy with that with the government that i would refer the court to join appendix pages eleven and twelve where it's clear that this the government or the b i a actually made the mistake of fact in saying what