this court should follow and reviewing published four decisions to determine whether they're a departure from the settled course of adjudication those cases rely on the supreme court's decision and i and us versus yang which establishes that when there is a subtle course of a unpublished decisions any arbitrary departure is a legal violation and a violation of the does yet you say that or does yang say it might be to say might your honor that's right and what gang really wants i think is an explanation if you're going to depart from  discretionary it wasn't to a sponsor right and it was actually issued before some of the jurisdiction stripping provisions were issued by ira but yang has it it's not totally clear that that reasoning makes sense in some areas discretionary right even if you have a settled course of conduct if it's a totally discretionary decision why can't you just change your way of looking at it without explaining it's discretionary anyway i think yang size you can but you have to explain your reasons for it but you just explain that yang is from before we had this jurisdiction stripping so when we're not really supposed to ask why something is done that's discretionary how do we get back to this rule well but importantly in this context the ira ira provisions on discretionary are in a political right we're looking at the heckler versus cheney exception which was an a p a issue and that was what gang was looking at so in this context it's looking at the same jurisdictional provision but we have to figure out if that makes sense to apply our court has never said that in a sewer sponsored reopening situation departing from a line of other cases what appears to be the reasoning in the line of other cases is impermissible it has not it has very limited application of yang it does have a case called burke which just cited and to be honest it's really the third circuit that's sp headed this issue the eighth circuit also has a decision called golf which looks at unpublished decisions and in that case it found that there was no settled practice or course of your kitchen but that if there was a departure maybe an a p a violation position before it got to the supreme court and there's a reference to maybe it was hammered into its concession by the ninth circuit but our work there is so i'm not sure that y covered and a rational departure from that policy could be arbitrary i never heard the word unpublished there any place nor do i see anything that supports the proposition you've offered for which is you can infer from a collection of unpublished decisions that the go on don't go into details settle the course of adjudication right because obviously precedent would be binding if the if the board is due to decision saying here's one list it was fun to reopen you have to file within ninety days it has to be of a creature of the merits and you have to show you would win on discretionary  know i mean i understand your argument that you can draw that inference for me and i don't think yang requires it and is there anything else you have to offer that may i got to say i've got a problem with the whole notion of rummaging through a collection of unpublished decisions because we crank those things out like crazy ourselves and i don't want to encourage him to go rummaging through our memorandum dispositions and try to find what it deems a quote settled policy that i am bound as a judge of this court to follow i just i have trouble can make that decision for ourselves by delving into unpublished decisions so i think the answer though is that there is a high number no i think the first thing to know is the board doesn't put out all of its unpublished decision so we're really dealing with a small percentage of what the that might mean that there are lots of them that go the other way it might be but i think it's something for the board to articulate i mean let's say hypothetically there's five hundred decisions reopening in the exactly this situation where the big picture of conviction was valid and then there's a one  got this ongoing practice and then it departs because of brown here i pathetically i mean that has to be something that's an e p a violation and the house can be because it's a heckler versus cheney issue right it's not about the statute it's about whether or not this issue explanation also why the b i a declined it's exercise it's to us one day power to reopen in this case the only fact we can certain the day i b a considered the considered is the date on which the the many in this filed their motion to reopen and yet even though the b i a gave no reason our court concluded we didn't have jurisdiction to revisit that issue here they gave something of a reason the reason they gave is not on the surface  irrational or arbitrary or capricious so worried we have discretion to delve any further your honor again they did give a reason so ironically we know after bony add that if the reason is given the court can look to the reason to see if there was legal error there's two reasons given the board's decisions are slightly strange here after the motion to reconsider but i think just during from the board's decisions they're saying that he waited too long to file the motion to reopen after the conviction was vacated and there is a pattern or practice we have examples again of cases that were two years four years five years from getting the conviction vacated to finding the much a tree open and again notably there we don't have an objection to such a rule because the board and it's to a sponsor thought he can make these rules there or it can say here's our standard but if they're going to hold him to a standard that he doesn't know about that's where the problem how do you reconcile what you're saying with the statement that the b i gave in explaining its reasoning in the reconsideration order where it says sue us of ontario opening was denied not for timeliness but for a lack of exception an exceptional situation so i had vacated for the merits but the other is they said that he wasn't eligible for release and i can see that if a person gets a conviction vacated but if they don't they weren't relying on that basis but it's it's since i mean that's all i think i can just turn from it because if there is no i shouldn't we assume that they think that even though these the conviction was vacated that he still did something that is troubling today and and they want to not give them relief in their discretion i mean there are lots of ways you could explain what they might have been fifteen examples in this case of cases being pre open where the person for the first time is eligible for discretionary relief and then sending it down to the judge to make that determination in the first instance so again all of these things establish if you're just consistent they can do whatever they want but it's the lack of consistency in your honor i do understand your concerns about going through the published decisions because obviously that's dangerous in any capacity i think what we're looking towards again is a settled course of adjudication and you know if you have any any case you can point  the one thing the board said in its september twentieth fifteen decision and the paragraph toward the bottom of the first page that concludes that but your client did not establish an exceptional situation sufficient to warrant so a spot here reopening it talked about they consider it significant respondent had a full and fair hearing in two thousand and six and did not diligently pursue relief thereafter and there was a pretty substantial time gap he was order move in two thousand and six and he came back a legally some time after that and was in this country for several years before the california conviction was vacated and then it was after that with some explanation as to why it may have taken so long it was it was more than a year after that the motion for the open was filed and the board looks at that and says that's not diligent why doesn't that end it right there because none of those other decisions talk about a lack of diligence of this period of time if if it's a matter that's been assigned to the agency's discretion why can't the board considered elegance is a factor and in exercising discr almost all of that time why can't the board say that's too long period end of story no no no no it doesn't because our decision says even if you have no reason at all that doesn't give us jurisdiction but not when we have we have again examples of i think a case in there thirteen fourteen years in between the conviction and the motion now the only dispute that is before this court is whether or not this court has jurisdiction to review the board's decision to not exercise spontaneous already in bosnia this court said that contention that the board applied an incorrect standard you have been matter of j j where the board specifically stated that we have the right to sue a sponsor reopen and that power is reserved for exceptional situations and it's not meant to be used for a general cure for filing defects or otherwise circumvent the regulations when enforcing it might result in a hardship in this court the board with the board is very clear in this case when it said the following when it sufficient for us to have jurisdiction over the claim if the board introduced a published decision announcing that that was the the how it interpret its right its regulation correct under the hypothetical if you have the scenario in this case it would have to be that the board would say along with it's a matter of j j and matter j g d excuse me it would have to say that that's one of the factors to consider but it but in particular in matter of g the bor was very specific to say that the alien has to provide that his situation is truly exceptional so i don't believe that i have figure out if you're fighting the hypo so when you say it has to be one factor are you saying that the hypo couldn't be that the board announced a rule that setting aside a conviction was an exceptional circumstance i don't if the high how i understand the hypothetical was one the board says it is period or two it's a factor i'm saying based upon  precedent if this hypothetical did exist the board would not say it is period it might conclude based upon its previous decisions that it could be a factor and therefore it would be and then if this in this case if the board declined to consider that and it specifically said we decline we can't discuss this consider that that would be illegal but the problem is you don't have the hypothetical just doesn't exist in this realm of this play that's really hard to apply the hypothetical particularly when you have this court in beneath recognizing that the board is not required by its own regulation or by its own decisions to reopen proceedings even if you do have an exceptional situation so the hypothetical conflicts with this court precedent also to sort of hone in on a particular argument that petition was making with regard to this i guess the word is settled course exception that the third circuit has gone through that and then that itself conflicts with this court as well and this court in beneath you know relying on its previous decision and i i commend simply stated that the  similar to everything else he could not provide a uniform line of cases on remand him you know at the end of park if you look at on page in the conclusion of park on  admits that he was removed and we entered if you look at the record on page one sixty six he admits that he returned illegally in two thousand and eight he admits on page one seventy two of the record he was arrested almost five years later two thousand and thirteen for driving under the influence for driving a suspense license he admits in two thousand and fourteen yes to make the previous conviction vacated he admits he pled guilty to felony possession of methamphetamine  well it's certainly the case that there's a pretty ugly record or the board could have said that it  didn't it didn't talk about the illegal reentry it didn't talk about the subsequent pleading of guilty to other charges  it talked about the lack of diligence and so i guess i posed the question to you under general a p a standards do we have enough that permits us to immigration court and you have to looking at the record on appeal these are the facts that were that were before the board and that and that itself following i commend following that in the self sufficient and then inevitable does not invoke under that hypothetical the board under the b'nei analysis that's the reason the board would give under the b'nei analysis the board is limited to if the refusal is based on a legal or constitutional error  it would be the burden of petition to prove that refusal based upon a legal or constitutional error you know i would i'm not a constitutional scholar can posit that whether or not but that would be sufficient but that would be that would be the crux of the petitioners argument that he would have to he would have to make a vote this court's jurisdiction but the the jurisdictional bar is high in this case because of the way the regulation is written that the board may reopen proceedings on its own motion unfortunately if the court doesn't have any other questions i think we may not so thank you very much for joining us by phone then i really appreciate it thank you your own good luck there with the snow and i think you have left a couple of things the set of course of adjudication analysis does not apply obviously to the federal court this is a doctrine that was developed by the federal courts to make sure that the agencies were properly doing their job so that even when a decision is discretionary there still are some constraints to make sure that they're not making completely arbitrary decisions i also did find a case i was referring to  and that's from september of this year and then finally i just wanted to note that in the briefing we did note three cases that were in publish where the motion to reopen was filed and one case four years after the conviction was vacated again just showing that there is a departure from a settled course of adjudication and all we're saying is if there's going to say ramos ramos ok vasquez is that the one  of this year and it does actually say we also conclude that the substantive modification of the responded to one thousand nine hundred four conviction is an exceptional situation that justifies sponte reopening so but could you read it again as i'm having limited exception you shouldn't it isn't going to be a platform upon which you can do anything more this if this is not a similar limited exception are you wanted to if you take the facts of that case in this case it's not a similar limited exception right i mean i think the big difference in this case your honor is that they found he was ineligible for relief and that would be a basis for finding somebody is not an exceptional situation what's the point of reopening of the person's going to be deported and that's i don't know problem with that but we obviously raised the relief issue to this court under the man come reward test which we don't have time for but i think that makes sense to me not you're not eligible for release why would we reopen but in all these other cases we've shown conviction bacon on the merits you haven't had the opportunity yet to apply for relief they send it back down and that's the departure again on the relief issue we do believe that the montgomery ward standard would apply and that we've