ago from ecuador when he was around six or seven years old he has been ordered deported by the board of immigration appeals back to ecuador after all this time we are asking this court to vacate that were of removal against him and to re removed before we make a decision in this case there is your honor his projected release date according to the v o p is march thirteenth of this year i believe so only a few weeks from  conclusion was wrong because the relevant date under the law for purposes of determining this restenosis eligibility for section two vols the release was the date of the commencement of his removal proceedings and not the date of his conviction this is really a question of simple statutory once circuits have already interpreted arrive or in this very fashion in fact there really is no other plausible reading of the statute given the mandatory language that it uses and the government has not even proposed an alternative interpretation in this case even you make or i think a strong statutory argument but i think you have to concede it's a little awed that that he would get the benefit of a pre rearer removal proceeding for a crime that he committed many years later after it were none of the reliance interests that the supreme court found significant in st cyr reaching its decision there obtained for this two thousand and seven conviction do that that's true such hartmann but i don't open the new in the light of the two thousand and seven that would be a very different circumstance you wouldn't have the an argument then i don't think that we would be making the arguments that we're making now and unique you say it would be very different if everything may turn on it but what sense does that make that they just simply closed in one thousand nine hundred four and on and started all over again in two thousand and seven why should that be very different as they could just start i can't claim to know exactly what was going through congress is mind but that is the way driven by the plain text of the statute even if we agree with your position on that don't you have another problem with the how do you get around the five year right problem and that's really the second error that the board of immigration appeals committed before the opening the reopening of the removal proceedings in two thousand and ten mr espinosa was arrested in two thousand and four in connection with a drug conspiracy offense he was ordered detained by a magistrate judge in the eastern district of new york from two thousand and four until two thousand and seven he was detained pursuant to that detention order there were all sorts of administrative delays in connection with his criminal proceedings he finally pled guilty in two thousand and six but a judgment of sentence was not entered against him until two thousand and seven so right there there was a three year period when he and ten for reasons that are not apparent from the record and then we can explain either the government has offered no explanation for the government did not reopen mr restenosis removal proceedings for three years after that judgment was entered so that's an additional three years that  was an able was incarcerated and on able to renew or refile his application for us and people see relief in other words we're looking at approximately six years two thousand and four to two thousand and seven and two thousand and seven until two thousand and ten during which m was basically at the mercy of the executive branch of government and had no choice but to sit in prison and basically wait out his time until he was able to ask the immigrant stories counsel let me interrupt you on that issue if we assume that could even or even should have considered his application for a two twelve c waiver no protocol as to some other da i think that the first issue that you raised is is that the question and this one here is something else but  i'm not sure that his personal circumstances are relevant to the question whether he should be entitled to this form of equity but really i think that the factors that the courts to consider in determining whether mr espinosa is eligible for not pro tunc relief in this circumstance i miss i mean eligible yes on him whether he will whether he statutorily eligible i don't think is a question of fact at all i think it's simply a question of law whether he is entitled to seek that relief but in terms of whether the five year bar should preclude him from seeing that really i think you have to look at all of the circumstances of this case and i admit as we said in our brief the circumstances of his incarceration from two thousand and four until two thousand and ten that six year period were never there's no factual record to shed any light on exactly what happened and what the nature of the delays were that is why we're out of there so why should we why should we apply the nun proton doctor in this case on this issue because judge cert mr espinosa had an outstanding outlook ation for section three twelve c relief he was arrested in two thousand and four and become it because of a detention order and really six years of delays that as far as we understand were caused by the dilatoriness he was precluded from anew in that application and in fact he was not even if he was free he was free to go out he was not is not in two thousand and four from two thousand the government is essentially saying that he has served and this is what the b i e health that he has already served five years of a ten year sentence because as of the date of its removal order in august and start in march of two thousand and twelve he had been in prison for at least five years on that sentence the drug conspiracy offense that he was arrested for in two thousand and four and what we're saying is if you look at the entire record he was arrested for that offense in two thousand and four and was unable to take any action in connection with this to false the application until two thousand and ten at the very earl when the government reopened his removal proceedings before that time there was absolutely nothing he could do so but for the detention order in two thousand and four the fact that it took two and a half years i think for him to plead guilty another year for the court to sentence him and then another three years for the government to get around to a searing additional ground of ability against him based on the two thousand and seven conviction he would be entitled to seek this relief and we think that in light of all those circumstances the stress of those entitle to equitable considerations but even more important as i said the factual record here is a little bit undeveloped so we think at the very least the courts and romance of that that issue can be given a little bit more study isn't there mr law for in contradiction in your position because you you make a very technical legal argument on issue number one and you've got a lot of strong support for that three courts of appeals to review cited but then on issue two you turn around and say well we're not going to get technical with the statute the statute does say clearly if you've served five years you're out so let's not worry about the statutory language tell me why we shouldn't horse you by your own petard understood with respect to the first issue that i discussed that statutory provision is clear and unambiguous there's really no way around it on the second issue there is no law of which i'm aware that says judicia about as far as parts of amendments in one nine hundred ninety doesn't have that mandatory language and this court has already indicated in the parallel case that affable considerations are entirely appropriate under particular circumstances so given that i really don't think that there's so much of an inconsistency between those those two positions disarmament if we don't agree with you on both of the statutory questions to still have a due process challenge we don't we think that these protections are obviously there for a reason the immigration proceedings as a whole world little bit sloppy i cannot claim it to stand here today and no it's the entire comprehensive scheme of immigration relief that mr espinosa might be able to avail himself of there may be other forms of relief so i do think that there's a reason to send this back and the fact of the matter is that the board of immigration appeals may be willing to reconsider its position where it wouldn't be that you could get to twelve c relief if we don't agree with you on the two statutory questions times he is now represented by counsel he will be represented by counsel of this case goes back for further proceedings part counsel but there can be no due process violation without the presence of our protect liberty or property interest ok because discretionary relief is necessarily a matter of grace rather than right and the ins do not right to but this court has time and time again excluding the language that you just cited in immigration in the immigration context said the petitioners like mr espinosa has to have a meaningful opportunity to be heard and ability to make arguments on his own my name is lauren fix that i represent the respondent united states attorney general here the simple reality of this case is that mistrust is not eligible to apply for to help c to waive his two thousand and seven aggravated felony controlled substance conviction argument about equities that doesn't really make sense in this case he doesn't he's never fully challenged that the date should be when the board considers the application and that is while the circuit hasn't said this that is clear decides the truth healthy issue and here he had served more than the five years also it doesn't make sense to the visitors are going would be to consider his application back at the time that it was filed in one thousand nine hundred four but if we look at the application and id for how could it waive the two thousand and seven conviction that had not been committed yet that doesn't make any sense and that would essentially be making the argument that he can application back in ninety four and then that should cover him for all future crimes he might want to commit at any point in time after that that's not what you told c really her thoughts before and that is not in any way fit under the normal reasons for recording something and as a matter of equity here and as the judge has discussed earlier if his case had been considered ninety four which she filed this is will see application to waive his ninety three crime let's say that had been adjudicated then those proceedings would have been closed and when he committed his two thousand seven crime through healthy would not at all be an option here so there is no rational argument that there is any equity that he should be allowed to ignore the bar the five year term for president bar here and have his suits o c application considered if it's a strange case in my view was the set because i don't appreciate why the government didn't just reopen a new case why would the government suffer the risk that he would be able to take advantage of this technicality in era of according to what the other three courts of appeals have held rather than just you mission that's in the record but i can say so i don't know specifically in this case what was the reasoning but usually when a case is a minister really close it requires agreement by both parties and why that was done i don't know but in any case that would  bought him an advantage of not being removed or a least adjudicating whether he's unmovable for his ninety three crime it's just sort of when away are you suggesting that that administrative closure inhibits or precludes the government's ability from opening a new case based on the two thousand and seven i read well it complicates the procedure because they would have to have somehow close those proceedings and then reopened new ones and why they didn't do that here they just simply reopened what was already the former proceeding  can't say why they did that and yes it has complicated the issue but it happens either way you know if you've seen it commonly both ways this is not some sort of exceptional correct procedural circumstance in your experience correct it seems like it was initially to close point it just reopened to the former proceedings so the government's just lucky that he spent more than five years in jail is that where we are the know because if he hadn't spent the five years in jail that they've got a pretty compelling argument that he's entitled to pursue to falsely relief right well to two points to respond to that if he hadn't serve the five years at the time of the board's decision it still would have been a matter of discretion whether he would have gotten to chelsea but yes i suppose that point the board would have considered the application and not that he was barred from applying in the first place and ultimately the relief would've been discretionary so it was speculation to think that he would have actually gotten to health but in terms of whether he's allowed to apply for to  all based on a post or euro two thousand i'm in conviction the government doesn't address this issue in the brief because it doesn't matter here the five year bar which is clear is enough to say that he is not eligible to apply for to trial c so the court may not reach that issue however this court has not reached that issue in a published ace and the agency the board in considering the issue relied on the controlling third circuit law that spoke issue in two unpublished cases but they haven't had a chance to do in a published case so if this court did not agree with the five year bar which is clearly a bar to his eligibility here and wanted to address whether he was eligible to apply for to hold c with a pos well i don't think how can we possibly ignore that i don't think you said your honor i think it's clear here are you i don't i'm not then asked you whether we should but how could we because i'm anticipating  your friend coming back on well you can't the statute is completely clear the time period up to the board decision whether he had served well more than five years sorry the first circuit and the fifth circuit and the second circuit have all clearly explained that the time period the relevant time period goes to when the board  looks at it says that the five year period is measured not as the date of the two thousand and four the two thirty to twelve c application is filed but as of the time of the final administrative decision and that specific argument  his big equity argument that again does not make sense and in relying on the one case that petitioner cites her oleo that case is completely different than what we have here for several reasons  puzzle so but his removal proceedings were initiated in two thousand and there the court did not directly reach this issue they specifically said we're not going to reach the issue but they said were we to hold were we to consider whether he could get around the five year bar that they that they might be inclined to let him be consider the difference there is that the five year bar for him when the board denied his usual see relief he still hadn't reached the five years the rebut the board denied it because he had given the wrong date about when he was convicted and at the time based on information he wasn't eligible turns out the date was actually before and he would have been eligible so there's an equity because he still hadn't reached the five years in prison at the t it doesn't make sense and it's not appropriate in this case let's talk a little bit about the process or at least what the petitioner refers to as due process do you agree that we need to reach his issues that he's raised if we don't agree with him on the statutory questions no your honor him here it's very clear that they this court has held there is no due process rights to discretionary really because there's no liberty interest in something that is completely discretionary and not guaranteed  is there any limit to that or does that mean one more into twelve seaworld the ins and the board can can do whatever they want have no procedure have arbitrary procedures well it we've got the this court has also said that there's no due process right in applying and the process of applying for relief so nathanson in any argument he has that he was not properly large apply for to chelsea relief there's also needed no due process violation because that's all discretionary relief he was told about the availability of you know the opportunity to find a lawyer he was given the list of attorneys does or says that he didn't receive it but in the record petitioner clearly told the immigration judge that he wrote letters to the attorneys that you guys provided me with the so he had the list and he wrote letters to those attorneys he was given three continuances to find if you're he's he participated in all of his hearings at that point he doesn't participate at the last one well because there is no last one there is an awesome but well there  one where the immigration judge explains it's been reminded purely for two topsy really consideration and the government mentions some issues and the judge says would you write this up in a memo give it to me give it to petitioner and i will decide what we're going to do from there so yes there was a hearing scheduled after that but they were never happened because immigration judge made a decision but that only goes to the process of applying for two twelve c and the denial or the finding that he wasn't eligible and there there's no due process right because again that's a discretionary relief that there is no due pro so on coming i come back to i'm concerned as to whether the government would recognize any limits to that what if instead of the the i j a deciding he didn't need the hearing after he saw the memo he decided he really wanted to here we have he had many proceedings to apply for any kind of relief he was going to continue as is not just a kind of turning but suppose that evidence of the really or his claims that he was a citizen he was allowed to present any arguments at any time during that he could have presented appeals to the board with his arguments so just the immigration judge making the determination when it was only remained for two trials he really consideration that he wasn't eligible to apply does not create a liberty interest because there is no liberty interest in this disc really and that would be the position here so to summarize this case actually is quite clear that he is not eligible by the statute to seek truth of the relief because he had served more than five years of a ten year prison sentence for his aggravated felony and that the board of correctly then decided that that bar applied to him and he wasn't eligible for to tell to really what about that the motion to stay if if we're not going to be able to resolve the  weeks ago they didn't have proper documents or any particular plan to remove him so i'm i would not say that he is going to be immediately removed when he is released from prison but either way we still oppose the say and that this court could still decide the case even if  it's not my decision it's with v h f and the harm is that they either have to put him in detention and then they try to find travel documents and then they have to wait it creates a backlog which creates problems for everyone else's who's in the removal process and here he didn't meet the standard for analytically and legally i am failing to come up with an actual distinction between the circumstances that actually exist on this record and the hypothetical that you described in both situations the immigration judge basically said i don't care what you're going to say in response to the government's arguments i'm going to adopt the reasoning of the government in full and or you back to a country that you haven't been to in three and a half decades without hearing why i'm wrong and after the i g did that what arguments to your client make to the  what proffer was made to the b a a that if i had only the opportunity to have my say in the trial court i would have presented the following evidence but he argued on appeal to the i a e a that he was not subject to the five year not suggesting that was intentional but my recollection is the i j a said we'll have you back here on the eighth the government give me some papers this dress but those you'll have a chance to respond and the i j a short circuit all that and decided the legal have to be something more than a legal argument because we all know from summary judgment practice and we know from our own court with this sitting we're deciding numerous cases without inviting the parties or the council in to be heard in open court we're deciding them on the that the b i a would be bound by that decision it's a present it is a presidential decision of this court and would not be able to entertain such an application but there may be other forms of relief and given the overall sort of sloppiness of the proceedings for the immigration judge in the fact that he clearly did something whether intended or not that deprive mr espinosa of an opportunity to respond to arguments that were adopted in full and used against him i think that there are grounds for vacate or in sending this back for additional proceedings if i could just very briefly also address the other due process free legal services as the government pointed out and as we pointed out in our opening brief it is true that mr espinosa need a reference to some lists that he had seen of lawyers but we have no idea what that list was there is no list in the record you would think that it would be appended to the notice here it is not and there's no indication from the immigration judge that he actually considered and determine whether mr espinosa has retained its current list of free legal services as he was required to do under the regulations on the stay issue i last several years he has absolutely no money his mother lives in brooklyn his siblings live in new york he has spent his entire life in new york so for the first six or seven years if he goes back to ecuador he will literally get off a plane in quito or why kill or wherever they sent him he will walk onto the tarmac conceded that your client has served at least five years of incarceration because earlier in your argument you talked about maybe d's three or six years don't count but the suggestion i heard from the government is that that is she was conceded by your client earlier is that true before this edition for review was filed well i do not believe that mr espinosa himself conceded that in the record as i think back on the record it's possible that there but as i stand here right now in front of you i don't think that's true my understanding is that he was detained as of two thousand and four and that he's still in prison it is my understanding that he has served five years in prison ok but you're arguing that some of that may not be countable time