judged to share live with us on line are you there judge fisher good afternoon your honor may please the court no weiss on behalf of petitioner jr ricketts i'd like to reserve three minutes of my time for we've all done in this case the b i a applied the departure of our regulation eight c a farm one thousand time ten years now with us i think twenty years since he was st put into immigration proceedings so let's get right into what to be is a particularly challenging thing even if we assume that you're right and the b i a was wrong in vogue in the post departure bars a jurisdictional how can your client possibly win if we were to send this back given that the nd circuit said affirm these for a district of new york and saying he's not a citizen and the only basis on which he has said he's entitled to reopening and reconsideration is that he's a citizen and now it's been decided against him after full litigation how what's what's the point of all this add to that that it would appear that warren would be positive on the question i we're where we where we go with this i mean we're we we got everybody in the room we thought it was important to talk about this but bet that seems like a pretty big issue so you want to tackle that st story or are be happy to so this goes obviously to the i think that i would answer that in two ways st with respect to the particular arguments that mr ricketts could raise a low i'll note that mr ricketts does have the asylum claims that he has raised in the  and i am aware of the court's decision on tuesday of this week denying those claims but mr ricketts still has the ability to seek rehearing with a panel or on book review and then potentially circuit the supreme court so those are not judicial economy and as a matter of law for the b o h to be able to consider all of the different claims that mr ricketts as asserted in one single proceeding the nd thing i would say is that the nature of the  why why is it in a pool why what's inappropriate about a recognition that there's no way that mr ricketts can win on the sole argument because silent pitches do it's different i mean it's not the thing you've pursued all the way through all the way through the assertion about reopening has been and reconsideration has been hey he's a a marriage matter it's pointless in some other way pointless is pointless it's the that's the that's the very nature of a futility exception of acknowledges that while there may have been an error it has no more consequence or meaning why does the fact that you put the jurisdictional label on it make futility less futile because jurisdiction goes to sort of the very adjudicatory nature and the jewry power of the b i a we  so they go back and they say ok we were wrong we've got adjudicatory power it's still futile but still you still lose on the only issue that you've got are the only issue preserved i and i acknowledge that the nd circuit's decision in this case  make it a very difficult argument for my client a lot well because the circumstance in which you could be successful on that issue that's that's what if you do that then i'm going to set up even more than i am i think your honor i would say this if the court does send this case back and exercise its discretion to do that and follows the usual rule to do that this court will give the b a d opportunity to put it in our triple are so bad and potentially it's futile i know it's painful but it's a most you can give me something to respond to that the conversation while interesting would have to be done right citizens who i don't think the b i a cam look into citizenship but there are potentially other issues and other arguments that mr ricketts could raise i don't know i've been appointed by the courts represent mr ricketts only perspective these issues and i'm not sure all the arguments that he might raise alone but i will acknowledge the nd circuit decision and the fact that that would resolve the citizenship claim that being said though  the jurisdictional nature of why the b i a rule that it did is the kind of error that this court for example in overall you versus attorney general which we rely on our brief where there is the ability to send the case back sides in a debate that's consonant no your honor i would say this in response to that so the pussy versus holder decision relied on union pacific which stated clearly that an agency cannot contract its compression authorized jurisdiction the question that you're referring to includes the on the chevron question was whether if there is some ambiguity in the statute can chevron deference then apply to the agency's interpretation of its own contract your jurisdiction we said you didn't air b i a and deciding to apply a post departure bar in the context of a sue sponte decision not to reopen and but i would see the jurisdictional nature of that was clarified in abrogated by the supreme court's decision and eyes are versus wilkie earlier this year and that i threw if that's true why wouldn't we just dismiss i mean you're if over a says that look it can't be the case that this was decided on the basis of deference to the judgment about its own jurisdiction it must be the case that the can do this as a matter of discretion and that's the right way to read to decide if we if we thought play post departure bar as a matter of discretion and if it's a matter of discretion we don't have jurisdiction so your petition is dismissed because that's not what the b i did in this case your honor i don't think that's disputed if you look at the record of page that it was able to recognize legal error and its normal procedure would be to remain the overall the court for example did recognize the lead decision and stated that think on is not applicable or because you think that essentially gould round that i mean the problem with one for you i would think is it's fairly u i i totally get it but it's it's it's hard st to think about how the error gets around the determination regarding citizenship and that's you know that's difficult yes i mean i would say again and rest on really the jurisdictional point going to sort of the underlying fundamental nature of the proceeding and i just don't think it's it would be appropriate for the force particularly given the fact that the court hasn't applied to remain and futility exception in the immigration context before to make this the st case that you're really given where the supreme court has  rebuttal mr moss for the government you're on a good morning everybody good point good afternoon your honor and if the court benjamin mark moscow for the respondent as you know we are asking the court to way continues to treat the post departure bar as if it were a jurisdictional bar that despite statements from the  which pretty clearly say you can't do that indications from our own court and from others that they don't just have the latitude to be so lame that down as as a statement of their own whatever else happens once you've got it this much is true you've got your stiction and you have to do this in the st instance you have to decide this in the st instance you don't get to just say hands off no jurisdiction a couple points in that your honor st because in bhagam lost by the supreme court said the courts and agencies are not required to reach on necessary issues there's no reason in this court to wade into that which is unnecessary for the result which is inevitable nd to your point inconceivable that they could reopen it considering cyalume are you saying that the existence of the reinstated order as a regulatory matter makes setting in possibility i am saying that your honor it is in fact do that so there just is no where to go and it is as your honor pointed out to my my friend the only issue that he preserved for the board that is now before the court for decision is citizenship the court has already disposed of his related protection p f ours just two days ago there really is nothing else left but citizenship and that is a claim and issue precluded there's just nothing else for this court to do to tell the agency to consider because there's nothing left the court should just deny the b f r and embrace the futility remount exception which i think seven or eight other circuits have published on this court has acknowledged in various other settings and unpublished immigration cases this might categorical exercise of discretion given channel we must confine attention to the words stated rationale lack of jurisdiction if we thought we could or want to get into this in light of that kind of reasoning could we even one good deal while we kind of opening treat this as if you sent back for the boards are considered on discretion i think we all know what the board is likely to do in that situation just look at his his criminal history because quite extensive and the fact that mr ricketts stole the identity of united states citizen so i want to start with the question that you asked just shorten about if we wanted to get into it couldn't we and the answer is yes there would be if you kill the exception is a discretionary one and i would say there are good reasons why the court should get into it in case this is a case where the court can reach those issues and we think it should to show that the constitutional right at stake here is one that is worth protecting in this case you have a constitutional right you're talking about is what insulate itself from and the government from being able to be incentivized to deport individuals who have legitimate rights to raise those kinds of claims it's true that there was a material issue of fact i mean substantially aided by the jamaican authorities assertion that he was an american citizen but you didn't have you are not an american citizen your scratched name on a birth certificate and a handwritten note on the top of it does not prove you're a citizen of nine states so  i take your point but you know wasn't didn't seem like it was that powerful merits case to start with would be down to ass and say can you answer the government's assertion that even if this went back there isn't anything that could be done for your client and you may be cut short on it because of this other regulatory bar that exists aside by the government and then recognizing that maybe you're in there for the st time