we are point to go on the very last case of the day oh my appeal seven hundred twenty one six of the first is whether the board improperly denied his motion to reconsider the second is whether the board improperly fail to assign his motion to reconsider to a three member panel of judges and the third is whether as far as can tell from the record there is no explanation failure your honor it was mail room issue which i didn't catch that time regarding the improper denial of reconsideration the board does have great discretion and whether or not to reconsider a decision the board should reconsider when there is an issue of a material fact or an issue of law that is raised in the earlier decision  is eight c f r one zero zero three point one d to a and b to b d to a refers to the specificity with which an appealing party notifies the board and the government about what their issues yes your honor is correct as is the government that the so part b authority of the board was not addressed below and that may constitute a waiver and if that does however we still have remaining issues regarding the all the rest of the if some part a was improperly invoked they sort of go together and if the board in correctly found that the issues had not been stated with sufficient specificity  so whether that was a that's one of the main issues i guess right now in our position is of course that the claims on appeal to the board were sufficiently identified in the notice of appeal and your guidance of that would point t fact that the government did file a thorough response addressing all of those issues the issues are generally things that are identifiable and yes they could have been better developed and when the motion stated that  perhaps it was insufficient to effectively present these claims that was not intended to mean in effect it's a matter of effect of miss the bet is not the best way to present those those issues but they were sufficiently communicated and that's exactly what the next line of the motion states the board however i took that effectively communicate as a some sort of concession that it was proper for them to invoke the authority under sub part a of the regulation and we think that's incorrect additionally another issue that was raised at the board for reconsideration was that the appeal itself was not referred to a three member panel where we had  five basis under the regulation for which which were made appropriate for the case to be referred had the case been referred perhaps a summary dismissal provisions were not applied because the streamline regulations as a whole would not come into play had the board actually referred the case to a three member panel what log required here that doesn't require your honor but the regulation that sets forth remember review identifies the provisions or the reasons of situations where it can be appropriate for the individual board member doing the initial review to going to sign the case to a three member panel why would that entitle you to release your honor because well again if board's decision is how they address that issue in that particular case i believe they hadn't addressed that in the initial decision in a summary dismissal and later with a motion to reconsider sort of tying into the third issue they dismiss or decision it must do so in terms that allow reviewing court to understand why it made the decision that it did and in this case not if it's obvious on the face yes your honor but in this case it's not obvious on the face and the reason for that is that we don't know if the board made a legal determination that none of those conditions that allow three member of us president or of the agreed that it was present as argued and just simply chose not to exercise that authority so that potentially is a legal issue if the board in correctly believed that for example this was not challenging the question of another precedent this was not  an immigration judge acting in contravention to applicable law or precedence so one thing we need to know is that the board actually understand that that had taken place and then decided not to refer it or did they incorrectly believe that that issue ha not been implicated at all but you filed no brief so the board had nothing to evaluate understand it and have bare bones cursory notice of appeal you're saying yes your honor however in terms what was being challenged yes your honor the notice of appeal did however identify the provisions in one of the introductory paragraphs about wife three member panel review was appropriate and rick question right but if you don't file a brief to explain it honor where that issue still comes into play though isn't the denial of the motion to reconsider itself because in that case the motion to make the explicit request and also identified the regulation which authorized three member review and it's actually in that second  denial of the motion which is really that the subject of this petition that's where the board did not say whether they agree that because you make no case for it for reconsideration or you make no case for a three judge panel just citing the say what would have been the appropriate path for counsel to take after that a potential remedy which is actually referenced in a footnote in the motion to reconsider would be filing a motion to get there's various requirements for a matter of lazard a motion to reopen and it would require the filing of a bar complaint or an explanation of why a complaint wasn't filed in our records and we had contacted the executive office for immigration view and the department of homeland security a matter of was out a motion to reopen or any motion to reopen has not been filed to date and that would however be the remedy if there were ineffective assistance present this record merely board's summary dismissal order was correct and there is no reason for the board to reconsider that issue if the court were for some reason to reach the issue of whether petitioner adequately specified his reasons for appealing the reasons for appealing but his inner state and his notice of appeal are similarly lacking in specificity they cite no particular facts they don't cite to the record and they do now at site and specific legal arguments or any cases of this court moving on to petition or final challenge which is that referral to a three member panel of the board was required in this case this court has been very clear in published cases over the past decade most recently and you said the sessions a few thousand and seventeen case that the regulations never require the board to refer case through three member panel rather this is always permissive therefore the board cannot  in correct to choose not to refer the case to three member panel and furthermore in not referring both petitioners appeal or petitioners motion to reconsider to a three member panel none of the in which three member panel review is even contemplated is present the board summarily denied petitioners appeal because he failed to file a brief and because he failed to specify its reasons for appealing those or not reasons that are contemplated by the regulations our ng eighty eight an appeal to a three member panel is motion to reconsider as we have argued today did not say any error of law or fact by the board and therefore that the board was not in error to deny it without referring it to well let's have another two minutes out one thing to clarify regarding the motions to reopen being the appropriate vehicle to remedy something like this the regulations limit the ability of a motion to reopen to one motion except in very narrow circumstances otherwise one is stuck with to respond to death already in this isn't part of the record but in this case there are other options being pursued which will which would require a motion to reopen and so if this is and was made not to pursue those out at that time at least while this was going on there's a pending b s a petition and if that becomes approved and there may be another avenue as far as the remainder of  the government's position i disagree again that the i understand you are concerned that one is not entitled to a review by a three member panel but i do think it's important that when the board makes the decision not to make a referral is it because this council argued no section that would allow three member of you was invoked or is it because they just simply decided they agree that yes that does involve one of the qualifying criteria but they just choose not to do it which is within their right of course well that might arguably be true in a fully developed appeal but this is not a fully developed appeal yes trying to regarding the motion to reconsider again we did cite a number able to persuade them to make this decision but what's important is to be sure that they're not just flipping a coin so at least by telling us in their decision that while this is algebra for three member of you they declined to refer that would be a different situation instead they just either ignore the argument or dismiss it with a line to just as we're not persuaded and i think that's insufficient for a view there's no further questions or respectfully ask this court to grant the petition thank you and thank you says i the case will be enter taken under advisement and