pollute was taken into custody and i became his attorney of record we filed for him a motion with the board once again to speak to reopen or set aside an end of such an order our actually in our case we have someone who has early one nine hundred ninety three through his you know his wife who was a lawful permanent resident of these the petition in almost four years later the immigration service finally got around to approving i think that the remedy ultimately for us is going to be one whether to strip remains out of the country for five or ten years as a result of that order of deportation or whether this court fin under the circumstances that stay was in place and that the court should have reopened because certainly if the court was in a position to grant involuntary departure are when he applies that the american embassy to return to the united states he's not subject to that time limitation if you will in terms of being able to come back with the order of deportation he says he will need to remain outside of the united states until until the attorney general grants him permission to reapply after deportation until that waivers actually granted i would imagine that the court don't know other than that one page that was given to them in april april first one thousand nine hundred seventy whether the judge actually ever went on the record what it was that she said to them they walked away from that hearing thinking that the that didn't happen so i believe that the district court part of their review would contemplate looking at that nine hundred ninety nine order of the board a missed that last hearing should not be sufficient to bar them completely from ever going back to the court so i think that the certainly the posture of the physician and the government is that not only do we have a time in this problem but that we that it should act to stay his deportation so that the b i could rule on his motion he's petition addressed only one issue and that is whether or not he was entitled to an automatic stay under the regulations it did not ask that goes into effect with a timely motion to reopen is a creature of regulation not statute if she was briefed in our or our responsive papers with respect to the automatic stay it only this court has said that it's not appropriate for the district court of the court of appeals to step in and grant to stay when the b i itself has the power to do so and has chosen not to exercise that power there is no reason for this case to remain alive in the absence of jurisdiction when there is an additional remedy of direct review potentially i don't know what position oil takes with respect to the petitions for review of discretionary motions government's position yes your honor if we were dismissed what would be the effect of the motion to reopen it cannot survive if he's no longer in the country and no longer has a basis for claiming he should have been allowed to remain in the country it's my understanding that the b i has an obligation to dismiss any pending immigration proceedings and an alien has been removed while i haven't found out this case i don't know but there's this case possibly the foot in the door that keeps that door from being closed because through this unfortunately i don't deal with petitions for review and i'm not familiar with it but it seems to me that well takes with respect to challenging them i know that there is a case pending right now work which is that an untimely petition for review and as far as you know it's continuing to be pending before this court that the united states is not taking the position that the court last hoorah stiction over it i believe this court has often taken the position that decision on a discretionary motion record so i don't know how long he was sentenced for on his penal code for seventy conviction but it appears to me that it's unlikely he was sentenced to a year in which case he could have brought up the titian for directly view with this court in fact the first time in his motion to reopen was denied and he did not do that won't proceed to the case of tory overshoes the immigration service thank you ok mr jones