to the immigration judge for further proceedings with regard to the withholding of removal application in particular to determine whether the background checks have been completed before entering a new order the primary issue before the court today is whether a remain and order like this for background checks constitutes a final order for purposes of judicial review and we believe that it doesn't and we believe that the starting point for this analysis is the statute itself eight u s c section eleven one hundred forty seven which defines a final order affirm the immigration judge's order the board of immigration appeals didn't do that it affirmed that immigration judges order in part but it reminded back to the immigration judge for the proceedings that the better practice to simply have the board declare its decision on in this case asylum and then hold the case as we frequently do and order a limited remain so that the background checks could be completed and then once the immigration that's what that's exactly what the supreme court said in stone that that was the basis of their decision to explain to me why we shouldn't treat the two petitions here separate because i think there can only be one final order of removal and so if that's that that's  happening in the absence of a consolidation order would just be separate well i don't think you can bifurcate the the agency's order and i don't think you can say that when the government doesn't want us to either so i guess i'm asking addressed for example the time limits issue and because when the case is on remind the board has said that the immigration judge can consider new evidence so that that evidence on remains might convince the immigration judge that she actually did file her application timely the immigration judge consider new evidence merits of these silent application on remand without a motion to reopen yes and that's what the board held in matter of all can tar and matter of empty as well and in fact in matter of m d c that's exactly what happened i was in with regard to the asylum application but there was new evidence showing that the petitioner was eligible for adjustment of status and the board said the immigration judge has to consider that evidence and is just about timing issue it reach exactly the same issue but with regards generally to premature petitions for review we do think that it would be appropriate if the court agrees with us that the immigration judges last order was the final because you know a number of different circuits have held that that a premature petition for of you can right then once the agencies completed its work on the case it's reached its final final decision making process it's completed its decision make process  and as long as there's no prejudice to the government side i said over the immigration judge had entered an order of removal which is a necessary prerequisite to with entering an order withholding r to become final ok but that happened in two thousand and eight subject to a remain to complete the background checks which goes not to the order of removal but to the relief of withholding right but but the board i think i'm having difficulty understanding your position because the immigration judge didn't do anything to upset or disturb the ruling on time with this issue in the file the sole issue before the immigration judge was have the background checks been updated so that she is in fact fills a bill for withholding the right well i think that under the statute you can't bifurcate an immigration judge's decision into for example the portion that found her removable and the portion that denied asylum and the portion that denied withholding and i guess that would be maybe try for katyn it but the you know the statute only or only allows for there to be one order and that an immigration judge can reverse a decision that the board is already made on appeal but if they're presented with new evidence that would affect eligibility for a different form of relief or one of the forms of relief the board already passed on that if you consider that you could have presented that to the i j a and asked for reconsideration of the asylum determinations yes and i think better than the pretty clearly allows i wouldn't she have to show that that evidence was not available to her the first time former positions has been you think you win without remained and the government says let us take it back and reconsider it because we don't know how to sink a supply store i think that's right and i think that i think the government's and i won't speak for the government but its response to our petition for rehearing explicitly said that you know that issue was not before the on bank court and i understand obviously that the court can you know take an issue that it wants to but it hasn't been different cases on bank you know so question one year bar and i didn't quite understand it that way i can tell me where i'm wrong in my analysis of this i was thinking that it's not really a factual dispute it's more as because the issue could be addressed by the board with more clarity the government would be amenable to doing or you confessing error at the board level that that the board applied the wrong standard it already show that the application was timely file what would a remain and accomplish as to that issue if the board already affirmed well the the affirm again is that what the same bank argument is all about you know your honor the government's understanding is that the issue at this argument the primary issue to be addressed here was actually the finality issue as opposed to the time when if you if the government i would request  like you know they already denied it so the only possibility is change your mind well your honor as i mentioned before that the issue that we is inclined to address the ship but but looking at but to answer your question the reason that we remained in the case was to allow the court to the board to look at the case with normal saying as the benefit of that is time we filed in light of that waiver and is that statutory regulatory i believe that that's regulatory but it you know it falls under the under the the statute as far as the fact that the time had run for the over well in this instance i believe at that point in this case it's the government's position that her removal order wasn't final until the immigration judge entered that order and so therefore that would be the culmination of all proceedings and that's when she could follow her appeal with this court she just she decided to waive any appeal before the the board of immigration appeals which would have been an option that she could have taken if there was any reason to do so but in this instance all of her proceedings have been completed voluntary departure also for that that's right your honor and it as long as the proceedings are ongoing it's the government's position that the route the proceedings are not final and that and still day until there is an order a final order now that order in most instances that order would come from the board because in most instances you're not looking at a case where something that's remained but if something is reminded to the immigration court it's the government's position that at that point after those proceedings have concluded is the point that you would have one final mediation lack of well you have to find her early or something like you know subjects i mean obviously the standard would have to be met which is essentially the standard for reopening although that's technically not what would happen but if that standard was not it is so that particular denial is is off the table however if that if a new if new evidence surface you'd be looking at essentially a new claim with with no evidence so that's that's where the distinction lies is that anything that the court has already make certain decisions always say remanding the case and it's presumed to be an open remain and so everything is is within the jurisdiction of the district court to decide subject to whatever standard you have and what you're saying is in practice you have an open remain and when it when it goes back to the i j a regardless of the issue that was remanded but that in practice the jays require or impose the motion to reopen evidence  that that still is up play under our interpretation of why now let me ask you this the panel was as perplexed as a three judge panel was as perplexed as the end bank panel is as to exactly what the government's position  if we are to write an opinion that is going to clarify the rule in this area should it simply be that every time the board of immigration appeals remain and a case to the immigration judge that is not a ok and then if there after a petition for review is filed from directly from the immigration judge's ruling we will have to apply the normal rules of exhaustion within the agency before we can declare that it is a final or that the issue that distinguishes this case from from the panel's interpretation i believe or the government's position rather is the fact that proceedings did you know something that i think there was a procedural subsidization that had been made and  y but as a matter of fact when it went back to the immigration judge she cleared a background check they were updated and so she was granted withholding of removal that's right her so it's right at that point she has no reason to appeal that decision because it was in her favor instead what she tried to do was to then appeal the denial of asylum that had been granted more than two years earlier right that had been uphill more than two years this black box that you tell us when it's you know tell us what we want to know when it's over in fact until you come up on appeal when you tell us it's over well you know as i mentioned before i mean the board for whatever reason it has chooses to to handle this matter this way and it has the discretion to do so i can't say whether or not there's any compelling you know particular reason but it's certainly not an arbitrary and capricious exercise of its discretion and the way it handles that but i can't tell you know that hypothetically welcoming that we all know that that is the applications team timely i would have to mean that the case would have to be sent back for a final determination on that but she has not the higher standard for withholding but the way they wouldn't lose out is if the court adopts the idea that a premature petition can ripen i mean it's done so in appeals from district court decisions as and like i said other circuits have dealt with this in the immigration context and found the premature p can address that you know in in in terms of the premier you know in terms of the the ripening issue because that petition for he is also pending before the court at this point but i thought your position well say we have do you apply the supreme court's you and i understand for you to use different how would you by the first hear decision by the supreme court in this way for normal appeals what the supreme court has said is if it's premature you can hear it as long as everything to make the case final has been done except citing that fine order here the position of both sides is that everything to make the case final hasn't been done so it seems to me that we would have a hard time finding premature petitions for appeal generally ok under the circumstances of your case well everything everything has been done now i know because you know the march that's a circular answer because you waive the appeal you know it's because the the final order applied at least in the immigration context in other circuits in the second circuit in a rare molina and there's a case called lewis in the second circuit as well is that a premature petition can gripe and once the agencies decision is final  the order becomes final and upon the expiration of the period in which the non citizen is permitted to seek review of the order by the board there is board case law saying that when you waive appeal of the immigration judge's decision you can't seek appeal that so  because that because that permission has ended as soon as you waive appeal that's why the thirty days using the thirty days starts at that point or that the thirty days doesn't doesn't run once  the last quick point i wanted to make was just with regard to the the board's decision itself with regard to the one year rule and i think it's important that when the board analyzed whether the evidence was clear and convincing it started with corroboration the first thing to the board says in analyzing that is however as noted by the immigration judge the respondent conceded that she had no documentary evidence whatsoever to support her claim of having arrived in the united states in figure of two thousand and two and that's backwards id law there's no corroboration is required of credible testimony in this court is held in pretty reality k the idea cases that the bore the the board must consider that testimony first and then testimony in and of itself can constitute clear and convincing evidence so if she says i don't remember the details but i know i filed it within a year of my arrival is that enough to be clear and convincing him because there's nothing to refute it's not clear and convincing well i mean this you know it a case like that might invoke city under the previous idea act standards so that the board at the immigration judge might might be able to you know request particular asked she was but again i mean i think that in in this this isn't one of those cases where it happened i don't have it with me i think she said she didn't have i believe she said she didn't have it but this isn't one of those cases where the immigration pointed to her declaration saying oh i know there's a lot of differences in changes they don't say the same thing so all the more so he corroboration well i don't think he's i don't think he said that i mean he found her i mean he necessarily found to be a