child which the petitioner notified us she had recently learned the severity of the condition the condition existed and may two thousand and twelve but the condition became worse sometime between  october to the time she came to my office after november two thousand and twelve i'm basically just wondering whether if we sent this case to mediation now there be any hope of an agreement but we did reach out to oyo when this lease was motion to reopen under eighty of our one thousand three point two c the agency is arguing the petitioner meters out and out for provisional waiver however this relief is not previously available to the petitioner at the time he address the government's argument from the previous case that even if there were three openings so there was no final order of removal she would still be in removal proceedings and therefore would be barred as is your argument there that you do you can minister of closure can you address that point administratively close or the fact that the government might oppose it should not be given weight if that doesn't really have any reasoned explanation just because they oppose it period and in this case my kindest and have any criminal history as she has a child with serious medical problems she could show the extreme hardship she's over seventeen years old she is an approved on thirty petition she's willing to leave to obtain her immigrant visa there is no other time on his motion and it is in which it has rendered a decision the board may also reopen proceeding under its your bar one thousand three point two seven one provided the motion is filed within the ninety days of final order to afford an and at this point i would be happy to answer the question or you can save the time we have left  good morning your honour's attorney seventy two f leo on behalf of the united states attorney general the simple terms of this case are that the board did not abuse its discretion when it denied petitioners a motion to reopen motion to reopen chose not to address the truth to deny the motion to reopen as a matter of discretion specifically because petitioner with a final order of removal as set forth in the regulation is ineligible for the in her brief and in her argument to this court the agency has consistently considered this case for prosecutorial discretion administrate closure and chose not to exercise its discretion and that's important important note for this quarter as and the executive agency decided not has consistently decided not to exercise discretion in this case i would even add that i need to forty two g talks about this question discretion and that this court doesn't have jurisdiction over discretionary those discretionary determinations by the sea and that albeit that i recognize your honour's concerns and i am not here to be about the facts with regard to the equities involved in this particular case but the actual issue in this particular matter your honor is clear whether or not the board abused its discretion well so i read the decision as mentioning discussion in connection with the i j a but then the petition er appealed to the b i a and in all of the discussion of what the b i a was going to do with this appeal to it i don't see any indication that the b i actually understood that there was discussion to reopen well i mean i i think i think  there's two answers to your question i think the first answer your question is it's affirming the immigration's as a decision the immigration talks quite sick substantial significantly about the discretion to reopen as well as the opportunities that petitioner had with regard to administrative semblance of will these new facts change the result and the this court is for can consistently held that the board be not right and exit is not right a full pay in the police a fifteen page decision with regard to what he considered and what it did not consider but it doesn't say anything other than that having a final order of removal barra's her but she wouldn't have one i mean that sort of begs the question if the question was whether they should eliminate that final order of removal of the even if he had as a result she has no relief available to her as a result this motion to reopen did not introduce new avenue are you saying that the same reasons that she was denied prosecutorial discretion are the same reason she would be denied the six i want to a waiver and we can tell that for sure is that what you're saying i don't understand the question i think if i if i if i mean if i do it correctly please ma'am your honor please let me know our position is this she is ineligible for a wave of regulatory she doesn't even get on the quote unquote floor with regard to the i six on a waiver because she is statutorily you know with people so all these so i mean it seems like the government's position is no one ever with a final order of removal ever be able to get a six i want a waiver provisional unlawful presence waiver that's not what the agency is saying your honor that wave which is leave the country apply for the two twelve waiver as we've discussed and as was discussed previously and go ahead in those terms with regard to the way that she still has a relief available to her with in that regard it's again it's just the process that's a little bit longer but what i would ask your honor to consider is what congress really did a really good job here is what they're trying to do is really helping aliens in this particular case and saying in light of the situation  individuals that are here and they have a potential for a high six zero one waiver let's shorten the time frame let's release that inside me and then going over and coming back but let's do so only in these limited circumstances and these limited circumstances as your honor identified were discussed in the preamble and are set forth specifically in the regulation with respect to if you have a final vote of removal it gets a little bit more complicated therefore there's a better reason for it don't seem to apply to her so i just really don't understand i mean so maybe let me ask you is there any chance if we send this to mediation now this case will mediate and i can say with i want to see you want to know and i could say and i can say that as evidence in the record it is evidence that th is simply not an avenue for this particular illian to receive discretionary relief in the form of administrative closure from the agency in this particular regard and  they understood that they had the discretion and with regard if you're reading the agency decisions in their entirety as this court has said time and time again we read the board's decision as well as immigration for the decision to the to the effect that it is affirmed that decision it's  although there are a number of equities that i could have amassed during that period of time to remain consequences as a result of that action and i don't see it here as an officer of this court and say stop no not getting in i six so one unlawful presence waiver what i'm saying is as congress has dictated she is not entitled to  provisional unlawful presence again in a regulation not congress right understood it's a regular understands regulation it's a regulation expense upon i an eight to twelve and kind of defines it for this court to kind of understand what it is to understand kind of what as a matter of discretion is their right to do so this whole idea that we're relying on god and its progeny with regard to statutory rights to be open reopen i think misses the mark with respect to this particular case in this particular argument this motion is that the the agency went about denying the motion to reopen on jurisdictional grounds and even if you look at the last paragraph and seeing it says we're not saying whether or not you're going to allow this motion reopen you have to at least if the agency doesn't understand that it has the ability to consider something that's a legal or right if it does not understand it has the ability to consider something and it does have the bill if the law misunderstood it the existence of a choice that's a legal arab illegal error but i would i would say that if you read it and if you read the immigration judge's decision the board's decision together i think that all those issues are pretty much handle the real the boxes are really checked in this case and the circuit is consistently held that we need not that the agency is not required to write on and on and on about what decision it made what it does have to do is recognize it apply the rule of law the rule of law the facts and then and  e did so when in our opinion in this particular case when you read those decisions in their entirety your office and in this particular case i think we have to hearken back to really what happened here you have  bore the burden of setting forth material evidence material military ality being defined by this court as evidence that would likely change results and this particular in the agency reviewed what was provided by petitioner in this particular case and what they are and what it came to the conclusion of this as a result of the regulation you are ineligible for and i six so on  unlawful provisional unlawful presence waiver and the respondent its response was a position that that is not arbitrary capricious contrary to the law and as a result of the petition for review your honour's in  opinion should really be denied in this particular case i think we need to really see what to flesh out what the issue is here with regard to this and i understand the equities but i think if we harken down on really what the question of law is here we remain and if there are law was going to come in effect on march fourth two thousand and thirteen and i believe that is the issue in this case and by denying the motion petitioners motion to reopen that she had timely filed with the ninety days they essentially penalized her for exercising her statutory right decision if she hadn't filed to reopen the she still would have been in removal proceedings so rule was published on january third two thousand and thirteen so there she would not been here to take her biometric which is one of the requirements for her to pursue provisional waiver she would have been able seeking reopening i'm not sure that's really right it seems like she had a problem anyway and maybe a misunderstanding she had time for that we were the regular outside the united  filed the motion to reopen she still wouldn't have gotten the six i wanted a waiver it's not the motion to reopen the motion to reopen causes other problem that we're not talking about here but it's not like if she had not filed that she would get us to she would have gotten a six i want a and if she hadn't taken voluntary departure she would have been subject to a final order removal months before so so he she had been penalize by this i don't understand your argument somehow she's been paralyzed by this process a cheek she got some and favorable treatment that she's hoping to expand but the reality is that she's never had lawful status and and would have been subject to a final order of removal upon the conclusion of the initial proceeding except she obtained voluntary departure mind the motion to reopen is because the petitioner took it you know by beating rights to and she's not supposed to have a motion to reopen it was a part of his decision in fact eating that and that anything that precludes considering as part of the exercise of discretion the fact that this matter has been pending for a long time that a previous resolution was reached now maybe circumstances have changed and your client doesn't want to honor the previous agreement why can't the i j a take that into account in deciding whether or not to exercise discretion well but but there's nothing that tells us that he did he knew the positive factors are there he he heard from your client and decides you know what when we were under a decision we don't talk about all the arguments in the end didn't have any traction we talk about what it was that finally tipped the balance and that's how i read his decision and you've acknowledged that it's not an improper ground for a decision so so west what is it that we are in a position to review only paid attention to the specifics that we talked about and we've got a clear law that says that the big guy in the agency doesn't have to discuss every issue doesn't have to go through all the evidence