our next case this morning is biased against bar the i j a had the power to do that right at the board has been very inconsistent and you can find that at this point is there any issue on the merits of the immigration ministry of law cases the ordinary remedy is to remain on to the agency for a fresh decision but you know rare cases where agencies are intransigent intransigent and there's really no issue sometimes courts will simply order the relief directly if we were to do that would that be more than you'd want to defend for an overreach sure would that be appropriate at this point in this case  cannot stand they have just asked us to remand to consider total irrelevancy which is how much deference does the board think we ought to give it since we're the only ones who can decide how much deference to give to the board the board's view on that question is neither here nor there the thing that's interesting at least to me but i will be asking this your tennis about is the failure of the attorney general to defend any of the board's reasoning that you've accurately observed that they're not defending the board but i don't think it's fair to say they've confessed error on the board either well they explicitly said that there was government's argument under the supreme court's recent the seat decision in kaiser it is too soon for that to review this final agency act because the board's opinion is in the government's own words the attorney general on his own motion can review any decision i take it that wasn't done it that was if your question was do we were manager for the board to do two particular things you chose not to do those things that's correct i take it the attorney general could've gone down to the case and said ok i'm going to do those and here's the answer i believe that the government by the best suited to answer that question but i'm un regulations that would have prevented the attorney general either the office that's legit yes i know you there is a sense in which i'm asking you a question that mr tennyson needs to address that you're not the attorney general's keeper that much we understand but that is went back here and went back with instructions to do two things although in the board's view doing one or the other would suffice without needing to do both the board chose to do neither we the secretary of homeland security might be the right person to make this disk and of course the government argued the last time the case was here that that was so and we said about this depends on regulations which haven't been discussed sending it to the board and the board chooses to give us the bird what are we supposed to do next  counsel perhaps give them a roadmap where they i think clearer than the previous opinion i think that is clearer than the previous opinion why how could you be clearer than about right let me take a different approach  me go back to the question that i asked mr avalon the immigration judge here has twice under two different standards found the waiver of inadmissibility appropriate for mr baez sanchez if the immigration judge has the power had the power to do that does the board or the department of justice have any other objection to that decision i believe that's for it that's that's aventura question i think there might be other eligibility questions we have that in our record what do we have that in our record it should be in your record your office so there would be it's a wonder been sure there is reason to send it back even if even if the authority question is settled the eligibility question the discretionary  one dead there is an eligibility question as to what kinds of you know what were any of those issues raised when the immigration judge st granted the waiver of  think in the initial appeal there were question i think the primary issue that d h asked raised was the discretionary one in the proper in the appropriate discretionary standard and i think the same thing occurred with regard to the application of that discretionary entered in the nd i don't think that the that the board has addressed because it keeps the because it's deny the waiver multiple times what that concept what the consequences of granting the waiver would be so there are those those sorts of issues that are thinking about cases we see we see a pattern fairly often for example there will be a criminal conviction there will be an appeal let's say of a sentencing issue there will be a remailer and  new sentence and then the defendant will raise new issues on appeal challenging the validity of his guilty plea or a new trial issue and we treat all those issues as having been waived by failure to raise them in the st appeal so what else do you want to tell us but going back to the adjudication question there are reasons why the board should be allowed to do to go again you know in addition to the sort of what the broad foreign policy issues we're hearing there are so there are particular issues with regard to when the construction of the statute and the regulations that have further consequences with it you know within the i n a or within the agency's operations  you know the determination of the term attorney general particularly after the homeland security act how that plays out is and we addressed that in our st and yes your he said the statute transfers particular powers to the secretary and not others and whether others are transferred depends on regulations and potentially a presidential year should reorganization ok so the board can address those didn't already have it's unfair to ask you questions that really go to the completely irresponsible behavior of the board of immigration appeals d because they're not you if i doubt if they've behaved irresponsibly it's very hard to ask the court to send it back in the hope that they will do better right that i wouldn't sort of in their defense i think there's one thing that there's one intervening thing that occurred between this decision and their the on the board issue casterton and in castro time the attorney general i mean at the board but the attorney general action is you cast for time and in that decision the attorney general disagreed with this court's decision by  aside the next decision but he can't just say well i disagree with the good issue of satan so i'm going to do something else that's called contempt of court and normally we don't think of the attorney general is engaged in straight of closure on and whether or not little different from this issue it's completely different from this issue but for but in footnote six the attorney general addressed this case specifically with regard to the court there's there's nothing that we do that binds the department of justice to abandon its litigating city but once a court decides a particular case the decision has to be followed out unless of course the supreme court reverses the board thought it with was and why it felt perhaps it required to go the way it did but i'm required to say who well they put at least felt that you know at least deemed that the attorney general's decision in some way constrained the way in which they needed to approach this case afterwards in maybe giving them another chance and explain you know stating to them that that this court's decision means what it means i take it that the members of the border attorneys yes your honor i'm very confident that the attorney general is in it certainly i don't think we are in the business o board telling them that the executive branch is free to have a little getting to sit but has to obey decisions once rendered at least in the particular case unlike many other judges we have not purport to issue and if the board members don't understand that they need to go back to law school i mean it the court has no further questions the government again you