before the person the refugees put in we move the proceedings he has to first be referred to the district director for a determination and processing of his refugee claim if the district director if terms that he's is very clear the statute and the regulations are both very clear about  returned to the custody of the immigration service and second the regulations in c of our section through a nine point one provided that the sole and exclusive procedures for considering  refugees application for just the status of are those set out in the regulations which of course require the processing by the district director so the statute and regulations are very clear on that and in addition there is a president decision by the board of immigration appeals saying that upholding that are the garcia alzugaray case in which the board said in a case just like this one that the immigration judge did not have jurisdiction the proceedings had to be terminated immigration judge at the deportation hearing and the immigration judge indicated to the council that were there at the hearing that he thought he had jurisdiction under section under eight c f r section thirty five point six and proceeded to  make his decision based on the assumption that he had jurisdiction over that provision now that was that was simply a mistake for section two thirty five point six other provision pointed to by the immigration judge relates to individuals who are in and expedited removal proceedings people who are stopped at the border and who are excludable because they do not have the proper documents or because they made a false statement upon admission of immigration has operated under that  that that was incorrect and he did not have jurisdiction on that on the basis of that regulatory provision the question presented by the immigration service then preliminary question is whether whether that jurisdictional detective can be cured or corrected by the consent of counsel council agreed that will go forward assuming that the immigration judge has jurisdiction of this provision but that was a mistake and we submitted under under the clap pace for example and i th in that adjustment are now with respect to the waiver application that mr simon off is fine for the question there is the appropriate legal standard is a legal question a legal issue not a question about just not a discretionary marine not as a section two or ninety waiver the refugee waiver those two waivers have different standards than the marine case basically do this balancing a discretionary determination to determine whether or not it's in the interest of the country to allow have to be granted only if it's a benefit to our country it's in the interest of the nation also provides for humanitarian purposes and family purposes a waiver under section two once he can be granted for those purposes that came out another question about the appropriate standard whether a person applying for asylum is eligible under the well founded fear standard or under the clear probability of persecution standard those are two different standards the question of whether those earth good morning please the court i'm john cunningham from the heart of justice representing the attorney general who is the respondent in this case the court will hear me make this morning both in this case and the case to follow involving this jurisdiction over this petition for review in the brief time that we have this morning to discuss this case i'd like to concentrate on the court's indulgence on the jurisdiction of reclusion that i think has an overarching application those cases and second because there was not the two tier administrative structure available to to get these these cases decided before you go into the courts of appeals that we have in this case it's certainly true the courts can reach my answer is that in fact of assistance of counsel is yet again and issue that the board can address it does of all the time the court's decisions involve many issues of that kind there are so if that's not yes that's not an exhaustion requirement it just says that you know that's the that's the way the system is meant to work you get your administrative process and then if you have committed one of those crimes the limited in the statute you don't go any further congress in the legislative history that this was being done in order to bring the united states into compliance with our with the international law on refugees and in particular with respect to the waiver issue once a person under the refugee convention article thirty two the person has been recognized as a refugee that person's should not be removed from the from the protecting country unless there's unless it's been determined that there's a threat to national security or the person poses a threat to public order connected with the with the provisions in the international law that's very clearly congress intention and the therefore it's not just a matter of discretion i think we indicated before ultimately when the the interest of the country under section two and i'm coffee or on the other hand for humanitarian and family purposes that initial threshold question is a legal question as to what the appropriate standard is i have nothing else