morning your honors robert power on behalf of mr molina i would like to reserve about two minutes by way of rebuttal mr molina has been living in the united states since he was about three months old and he obtained permanent residence status in one nine hundred ninety in the legalization program he's lived here his entire life except for about a month when he was deported from the united states in july of one nine hundred ninety seven deported to mexico that deportation was based on a legal error made by the immigration judge the immigration judge denied mr molina an opportunity to apply for a discretionary waiver eight to twelve c waiver and he was improperly deprived of his right to judicial review now there's a lot of cases allowing a motion to reopen where there's been a gross miscarriage of justice like there has been in this case that prior deportation hearing to be reopened if that's reopened that would allow mr molina an opportunity now to apply for two twelve c relief that he was improperly denied of in one thousand nine hundred ninety six or line of cases allowing reopen opening when there's been a legal error that's in there circuit court cases that have recognized that and also the board of immigration appeals in some precedent decisions and i think most relevant for our purposes are here are a couple unpublish decisions which have allowed reopening for a gross miscarriage of justice in a case just like this the matter of fernando's which is an unpublished board of immigration appeals decision cited in our materials in the administrative record at page two sixty four and we think there are several we going mistakes that the immigration judge in the board of immigration appeals made that require a reversal of the board's decision first of all the board adopted an incorrect standard for gross miscarriage of justice basically the board said that it will only recognize a miscarriage of justice where there's been a deter that the proper standard to be applied to be a b i am yes i think that is the proper standard gross miscarriage of justice where that where a person is shown a gross miscarriage of justice and the case should be reopened and a gross miscarriage of justice in the circumstances where there's been a legal error made by the immigration judge and importantly a and improper deprivation of the right to judicial review the board of immigration appeals adopted a standard that said it would only recognize a gross miscarriage of justice where there's a clear violation of the justice we think that was incorrect as an alternative we asked for sue a sponsor reopening and the board simply didn't address that so we think both both of those other decision is incorrect in both of those regards and what do you think spontaneous and we used to have a law that said we didn't have jurisdiction to review it denial or just of non through a spot they reopening but then a recent opinion i think preside said we could review for the limited purpose of saying whether they gave a reason yes i think there whether they gave a reason or if the decision is based on a legal error  in the court would have jurisdiction to review that decision as well that's on the on this to a spontaneous reopening so you do you think you're entitle to a grant and a rematch based both on the denial of  emotion you made about miscarriage of justice and on the lack of proper reasoning in yes that's correct i think either one of those if the case ought to be reversed for either one of those reasons or both the legal error in denying the  to reopen for gross miscarriage of justice the board's determination there was based on its assumption that at the time that the immigration judge made her decision in june of in may of one thousand nine hundred six that mr molina was categor as a legal matter as a legal matter people who are in deportation proceedings before the before and poll was and acted are are not disqualified from two twelve c relief so how would you distinguish the petitioners were aware of and had a right to judicial review that they consciously decided not to accept i think in those circumstances we can agree that there's not necessarily a gross miscarriage of justice where person where the immigration judge makes a mistake about the law and renders a decision and says now you have a right to appeal this decision if you want to and the person chooses not to appeal well maybe there is no gross miscarriage of justice there but in this case  only did the judge make a legal error but mr molina was improperly deprived of his right to judicial review when one of the distinction be that in those cases those judges could rely on the ninth circuit precedent in targeting and when it applied even though that precedent was later overturned i don't think that there was there were a couple board president decision i don't think there was a ninth circuit decision at that time but yeah  that is right there were a couple on board president decisions well could you help me understand the procedural context if we were to rule in your favor on the gross  issue then when we re mandates do we basically instruct that they have to permit reopening yes i think whereas by contrast if we only gave relief on the lack of a reason on us to a sponsor or a lack of a legal reason on a suicide bombing the nile then it would just be up to the port gave you send it back now will give your reasons that's good morning your honor sir and please the court you did you can on behalf of the respondent in this case they didn't sit properly denied the motion to reopen filed by mr molina more than sixteen years after he was ordered deported for the purpose of seeking relief under former section consistent with that approach in windsor generally permitted one motion to reopen to be filed within ninety days of a final administered afford or however in two thousand and one in two thousand and four regulations were promulgated permitting certainly aliens to file a motion to reopen for the purpose of seeking to the first regulation was in response to put on the litigation that resulted in the second set in two thousand and four as a result of the sensor decision by the supreme court time and again this court has upheld those regulations as constitutionally sound  faced with which which of these do i apply what is the triggering time period and makes the wrong legal decision in those other cases they did have and that we talked about  which was guy and it was it turned out to be overturned but they were making your point is well taken there was a lot of uncertainty and in fact in this case i think the timing is quite interesting because at the past and the next morning mr ordered mr moon deported and then provide him with an opportunity to appeal pitch two hundred eighty six of the record provides that notice that was sent to mr molina that notice indicated that he had two weeks to follow appeal with the board of immigration appeals he didn't file such an appeal instead he waited until the following year when he was ordered deported to reenter shortly thereafter and then another fifteen or so years before he filed a motion to reopen with the agency so in this case  village sanchez and this court's luna decision also support on the proposition that the agency had created regulations which precluded aliens such as mr muna from filing a motion to reopen because of is  him apart from all of these other individuals who this quarter concluded are not eligible for reopening of the us sanchez overing avila bus luna all three of those cases include individuals who became ineligible because of changes in the law very complex area to twelve c but mr molina contends that unlike those aliens it doesn't matter that he waited sixteen years because in his case there's a thirteen twenty six dismissal on the merits and this agency concluded that's simply not the case what they conceded properly is applied it's gross miscarriage of justice standard and concluded that because under the existing law he wasn't eligible for two types the relief is the protection order the initial one was n a gross miscarriage of justice and that's as i mentioned consistent with this court's case law in the law books in the villa sanchez counsel could you please help me understand a practical issues probably neither here nor there on the legal issues here but i was wondering why what happened over those fifteen years for sixteen years that there's an order of deportation but he's not poured believe it was a result of a criminal conviction that they would have to refer back to the record but i would note that mr molina is actually in removal proceedings at the moment there's a separate petition for view and opposing counsel has notified the court of this in the letter as well and that dresses of course so mr molina requested so sponte reopening when he filed his appeal with the board this request was not in his initial motion to reopen but there are two sentences in his appeal to the board which indicate he wishes to have sponte reopening extraordinary circumstance warranting swiss fun to reopening the board did not go on to actually state the words there is no exceptional circumstance here therefore we deny reopening sewer sponte but they did address the merits of what they saw  the reopening this due process violation it dressed due process in these deportation proceedings at length and address those on page six of the record concluding that there was no due process by lation in this case and so they in some stated he wanted to respond to reopening based on an alleged due process violation there is no due process violation in this case they didn't take that further step and states therefore we did nicer sponte reopening those words are missing from the decision but the substance of the response of the request is there this is how they interpreted the request this is how they addressed it they simply didn't take that final step but they did in fact to me would take that position that every man  meaningless exactly refute our where the board actually addressed the merits of the request of course the court can remain for that purpose but whereas here the board actually addressed the substance of the request and there would be no purpose for reminding reach that matter but the immigration judge concluded that in light of the serious drug conviction in this case the rape of a child a conviction in this case the overwhelming fact that they were negative with respect to the criminal convictions and the immigration judge thought that that was a basis for denying the motion is a matter of discretion even if all of the other parent was it had been met and so as i mentioned the board didn't reach that so that part of the decision is not before the court now simply mentioning that as a side note  just a couple comments by way of response first on the timing of the motion to reopen i would point out that where there is a quote growth miscarriage of justice of the board has allowed a reopening  even sixteen years and a public decision sixteen years after the fact of the matter of freeness in a published decision involving who was a person who was deported by a legal error came back in the united states sixteen years later and in fact the case was reopened and the person was granted to twelve c relief that he should have been eligible for back when he was improperly deported there are with respect to the issue of some applicants not being allowed to apply for two twelve c relief and other applicants have been allowed i think the the crucial determination the distinction there is people who have had a chance for a judicial review and decided not to take that with with mr monina this is a case an unpublished case at page two sixty four in the administrative record where the board of immigration appeals agreed to reopen the case and specifically said it was its decision was governed by the  decision of the district court dismissing the section thirteen twenty six claim finding that because the court made the findings that it was among which which include an improper deprivation of