my name is vicky doberman and i represent the petitioner mr gomes i'd like to reserve five minutes rebuttal mr gomes was a lawful permanent resident who was deported to nicaragua based soley on a stay conviction that was subsequently vacated on constitutional grounds within ninety days of that order from the state court he filed a motion to reopen at the board of immigration appeals he was in nicaragua at the time and he still is to this day he argued that based on the vacated conviction the borscht reopen and he also argued that the filing deadline for the motion should be equitably told he alternatively asked the board to reopen sue a spontaneous for similar reasons in denying the motion the board analysis at all that eight u s c section twelve thirty one a five bars reopening because i would agree because he had been reinstated right so here's my question in the abstract it seems totally fair to me that he ought to get one shot now that he's had his state conviction make it but the question of the issue i'm having is how to fit that in the statute and that's really what we wanted to write with your and we and right because we do know the background right so we have this older case lobos and there it's basically been said that the reinstatement statute bars review either collaterally or directly and of course we have a question as well did even though we didn't address that issue in our in bank case  did we somehow implicitly overrule that or is there some other authority that you rely on that would permit him to go back now and challenge that original removal order and i had a feeling you might ask me over ruled that aspect of the case because one question i have about that is usually in the in bank process that we really over rule case we say it and so well in had to define the scope of twelve thirty one a five and so in doing that it specifically found that the bar to reopening is only a political ball during the reinstatement process it said that repeatedly in its decision and it was central to the court's holding him because the petitioner was challenging the constitution the constitutionality of the reinstatement process as a whole and so at several points the court and you went out of its way to make clear you cannot challenge and underlying order or soley during the reinstatement process in an effort to challenge reinstatement and so to the extent that villalobos is inconsistent with that i would say it's it's no longer good law that on that  point i want to try to understand then the statute and why we have it one argument would be well while you're in the country now that you've gotten here illegally according you've reentered you're in the country you shouldn't be able to leverage being in by getting another procedure so that's one argument so i guess your point would be that once he leaves again five was to have some finality so that you couldn't really attack an underlying order while you were being reinstated that doesn't mean that if there are some other basis to challenge them up your order by way of a motion to reopen that you can't do it they didn't want people to be able to return to the united states get place in the reinstatement process and then have by virtue of being in the reinstatement process get another shot to challenge their underlying order whereas someone who stayed out of the country and wasn't you know didn't return and wasn't in the reinstatement process didn't get to challenge the underlying order in that way and that's why the court said you can't manufacture yourself this new opportunity but that's not at all what happened in this case mr gomez the fact that he was reinstated has nothing to do whatsoever with the motion tree open that he filed he didn't benefit or use the reinstatement process in any way to help him or to seek the reopening of his underlying case and so that's why you know the  concerns with what the point is it of twelve thirty one a five don't apply at all to him and in fact the court in morocco specifically addressed this very issue because the petitioner argued in the reinstatement process where you can't reinstate my prior order because the underlying order was defective and they said well during the reinstatement process you can't make that challenge but if you have a valid basis to reopen they specifically cited with the aid basically vacate his conviction he would then just file a motion to reopen being outside the country correct right and then then would at that point  would tolling and all that kick into an analyzer the motion to reopen yes that would kick in under that scenario and it kicks in under our scenario you know regardless of the reinstatement we laid out all of the reasons why the deadline to file should be told it should be told regardless of whether he was reinstated or not now if he were here in the reince you know and in the reinstatement process then certainly he couldn't seek to challenge reinstatement by following the motion of that point but that that's not what happened so let's say that he had a right to his at least his one motion to reopen and you were placed into that posture cited i think it's a third circuit case that listed a number of unpublished cases by the board of immigration appeals in which it did sue a spot to reopen years later where an underlying conviction had been vacated so if  you were permitted the opportunity to file a motion to reopen what would be the next procedural thing that would happen and where would that happen so if you were permitted to file it or if they found you know that your they could potentially reopen potentially reopen then you would wait for a decision so we were asking the court to put him in that place to find it that reinstatement bar to reopening doesn't apply in this case and remained to the board for it to consider the totalling argument that it never exceptional situation here there the justifies reopening on our own motion and it's routinely reopens years out you know after the fact on its own motion you know after our quest for  reopening in similar situations have anything other than that seventh circuit case or anything in the board that shows us someone in his position that got placed back in the reopening arena in his position somebody who was reinstated or reinstated and then deported i don't have a personal example of it i mean i can just say that having to spoken to colleagues of mine they have been successful in getting just for the reinstatement period but that's clearly not accurate that's not what the board i mean that's not what the ninth circuit did at all and there are several points at which it says that that's the only period in which that bar applies and the the government also says that the ninth circuit said that you have relief but you can only seek it prior to the reinstatement and again that's not what the ninth circuit said so the petitioner he challenge to the the reinstatement regulations and you know argued that the underlying order was defective and the court said well we can't consider that because you're arguing that in the context of your reinstatement process let me understand how that would work if they say well you can only challenge it prior to reinstatement are they saying even though you reenter the country you could challenge it before they started reinstatement we presumably you could because i mean at least under the government petitioner in this case it told him that he could do the exact opposite that after this reinstatement process was over if he had a valid basis to challenge the underlying order he could do it when he left and and they specifically cited the reopening provisions and that's exactly what mr gomes did after he was reinstated he was back in nicaragua and his conviction was subsequently set aside on constitutional ground then he sought to reopen this court in a number of earlier cases that we cited in our briefs has consistently found that where an underlying can work conviction underlying a deportation has subsequently been set aside or vacated on some sort of constitutional or substantive ground that the original deportation was invalidly executed and that reopening is warranted and so this is the exact situation that we have in this case  i think if the the court has no further questions you want to reserve the remaining time thank you thank you absolutely bars motions to reopen and in fact that is consistent with congressional intent in passing the reinstatement statue and consistent discourses in rouses security to start with the plain language of the statute there is no overt restrictions in the statute or qualifying language there's no restrictions temporally on his reinstatement statute no qualifying language also uses an absolute bar as an absolute power in the government's mind yes even if he was tortured tortured what if he was pled guilty to a crime he never committed and the reason he pled guilty is because of provable application of torture yes only absolute bar absolute bar because  that what it was saying is that reinstatement is not penalize you for that does not diminish the rights and remedies that you had prior to reinstatement so in this hypothetical someone was tortured and it mainly about whether that was a cons state conservation defective criminal conviction you have these remedies available to you for years and mr gomez's case for fourteen years to pursue these remedies and he did not until he legally re entered united states and with the assistance he that's that has to do with the state process but within the immigration process until he has a vacated conviction you can't leave has nothing to reopen right correct so i mean i don't think it's fair to say that he sat on his rights for all these years and then magically popped up i mean it's a miracle as you know to get your conviction vacated so that seems to me to be an unfair characterization how long morse but he didn't have anything to file on he so the ninety days then kicks in to see well maybe this is a case where a quick polling would be appropriate maybe not but and he pursued his notion of a cage from abroad and the governor of that time is making the argument that he lacked diligence that took so long for him to successfully vacate his conviction but he managed to do so before a number of illegally re entered the united states so that's why the government is saying here that during this times fourteen years of spite the fact that he didn't do anything to firmly vacates conviction he could've just like mr rogers for going that case how do you deal with this language  around us the only effect of the reinstatement order is to cause more realises removal those denying him any benefit from his latest violation of u s law committed when he reentered the united states without the attorney general's permission from the court goes on to say the reinstatement order imposes noce civil or criminal penalties creates no new obstacles to attacking the validity of the removal order and does not diminish the petitioners access to whatever path for lawful in three into the united states point otherwise be available to him under the immigration laws that's at page four ninety eight how do you do with that well what that court is saying first of all rather secure it was how do you deal with that which so that language is in the government's point of view is talking about the rights and remedies available to someone before reinstatement so reinstatement is not a traitor yes it's not saying it's a penalty right doesn't diminish your rights and remedies available to you prior to re statement but all reinstatement saying is you forfeit your right to file for further a leave your right to file a motion to reopen and you had all these talking about in the government's point of view is that the rights and remedies which are extensively available to you prior to reinstate but then you have a legally re entered after being removed at that point you forfeited this process that you had available to you does it make any difference at all to the government that before his  deportation no cold removal based on a now vacated criminal conviction that he would see a green card holder well no it does not make a difference the government this points an absolute bar i mean we're not challenging fact there is a constitutionally defective underlying order at this point and that's the same as in iraq the scarab there was a defective underlying move order but that's why it's consistent rouse to secure out to apply this bar absolutely because explains you had extensive process of able to you prior to your choice to leave states in this case and they say that language has other language which this creates no new obstacles and especially parses out someone who lawfully remains outside united states after deportation and they pursue their rights from there versus someone who doesn't and the language goes on further and states once you leave every entered and you've manufactured a new opportunity for yourself to challenge or move order that's not required by due process and that's what the reinstatement statute simply which an act of the current version of this statute noted that they also want to impose some sort of consequences on someone who continually re enters united states in violation of united states law and the court pointed out its early decision  because it's clear in the statute no it says no reopening i thought it was based on timeliness no they're saying they cite the reinstatement statute they were prohibited from the opening they don't get in the timing as they don't get into equitable tolling because at this point there's that's the finality in consequences that the reinstatement bar imposes and that's what the seventh circuit concluded in cordova so two that if you got another way if you accept additions argument that the bar motions to reopen applies only immigration official rather than immigration judge can perform that activity because there's no more process do at that point you're not determining rebuilding we're not turning relief on the other hand which can take years for an immigration judge at this point a very ministerial task and that c to say with what you're just saying that the that once the person the removal order has been reinstated he's back in the country of origin that in fact he has the chance to  reopen what why is what you're saying consistent with that and the reading of the statute was wrong or asking after a execute reinstatement order the facts that we have here yes consist in the fact that as soon as reinstatement occurred and he was removed there's no more remedies available but isn't there a one reading of the statute that you could say that the right not to apply for asylum the right not to reopen the original order would only apply in that process of reinstatement so that's petitioners argument and if i can go a little further with the point is trying to make a minute ago so except that argument and this whole point about the reinstatement statues finality statute always enters and find out it it would evaporate as to the panel use that word previously because there's no more finality anymore there's endless ballasts period after that reinstatement they can just file motions reopen that reasoning why can they also file for relief the statute also clearly bars all relieve but this only applies in the very limited reinstatement setting so why not the day after it gets removed and you can file any kind of kind of motion to reopen he wants well yes that is a question for a petition or the reinstatement order doesn't actually mean that you leave that day right but certainly not necessarily reinstatement order does evaporate once you leave in effect i mean in other words once you have a reinstatement order and you get deported you're no longer in reinstatement proceedings correct correct so now you're outside the country yes and counsel has said there are occasions where the the board has considered people in that situation so my question is have you had a file a motion for reopen doesn't mean he's going to win because in the government could make all those arguments you're making which is you waited too long this isn't exceptional so i'm just curious about why the government is considering we could consider mediation but we also litigate this issue in the seventh circuit i understand as well and so we are we believe this is the right result that this bar implies indefinitely and the board's hands are essentially tied then because the board is prohibited by congress from reopening at this point so the board can't sue a spawn to reopen the event there was actually presented to the board's position is prohibited by congress and the opening for individuals that have had their process they've been removed and then they choose to leave and they reinstated and removed again that situation congress has deemed they've had all the prostitutes no more relief there's no more reopening is no more ability terminations no more rel determinations does take years this is reinstatement it's just a very ministerial proceeding because they've had their day in court and that's consistent with congressional intent and acting a statute which was finality and which was consequence which talks about the rights that you had prior to reinstatement and not being a minister just for fitting those rights by your decision to the reactor not being penalized you forfeit it by your own actions in this case said that they're talking about rights and remedies available prior to reinstatement and that makes no sense that's clearly not what the court said the court was defending the reinstatement process against a constitutional challenge and in doing that it had to say you had to defend it by saying the reason it's ok is because you can still you still have all these rights that you're trying to argue in the reinstatement process it said the reinstatement process  regardless of the you know what happened in the underlying order it doesn't offend due process because reinstatement of a prior order does not change the aliens rights or remedies the only effect of the the reinstatement is to cause the removal from the united states the reinstatement order imposes no civil or criminal penalties creates no new obstacles if new obstacles if it's talking about rights before why would the court say no new obstacles to challenging or attacking the validity of the underlying order and then it cites the motion to reopen provisions it says that it doesn't diminish your access to whatever path for a lawful entry that you might otherwise be able to take advantage of it later says if more hours who challenge the the reinstatement process because his underlying order was defective if he has a legitimate basis for doing so he will be able to pursue it after he leaves the country so i don't see where the government can possibly argue that it was talking about rights or remedies prior to reinstatement it makes no sense the whole point the whole discussion was to defend the reinstatement process and in the alice was somebody actually who had been removed and then reentered yes just like your client just like my client but he was in a worse position because he was challenge he was still in the reinstatement process and he was arguing that the reinstatement process in the regulations violated his due process rights because of the few know the defective underlying order my client is not and has not made any such arguments he didn't use the reinstatement process our conundrum is that there was a different situation there that they were addressing and they weren't necessarily addressing the issue we're talking about here although we have language right but i think it's central to the court's holding in that case as to why this whole process which the court to previously had concerns about whether it was even constitutional to you know to find it ok it passes you know this constitutional these constitutional questions the court had to explain what twelve thirty one a five means and it's limited it to extremely limited it only means and the court said it that you can't bring these challenges in the reinstatement process and that's not at all what mr gomes did and so the government argues here he's manufacturing himself went as the reinstatement process and so i think you know i want to just first say that the court doesn't have to decide that in this case because it's clear that it ended in this case so you know kind of a cast of the side if it's interpreting this that right i understand i mean i think you know for sure it is that you know where a person's removal has been executed pursuant to reinstate or clearly it's over then i think it also there's a good argument that it's ordered it's over once a person decides not to challenge the reinstatement and so the government argues that was just this little period officer makes these findings and it's a few days and it's over well that that might be true but if a person files a petition for review of the reinstated or which the petitioner d morale is then you're still in that reinstatement period because you're challenging it and so it could go on for years and so what the court was concerned let's let's say the reenters here gets the reinstatement order and then is for whatever reason they have him detained but they don't deport him right away is there a period between the entry of the order and someone's deportation in which the reinstatement is over and he could then challenge well i think as as you know his opportunity to challenge the reinstatement is over then he could seek to reopen i mean i think that the actual to the reopening bar it's not only as a challenge i mean it's not only limited to the reinstatement period but it also is designed to not be able to challenge the underlying order to fight reinstatement and so i think the case just argued of gomez versus sessions is