because that's the process of issues like this get race for the first time in the group of people that is the process when there is no administrative process that the agency holds out that's exactly what this court said and t n versus guess that's the case when the agency does not hold out any administrative review and that's what the statute says that the exhaustion must occur for all of remedies available as of right that's what at the end sounds that exhaustion must occur with respect to those opportunities that the agency holds out and with the agency points to here is its regulation that eight c f r twelve hour wait between the start of the process  it's it is correct i know that we raised this issue before the immigration judge but as the immigration judge and the government acknowledged there was no authority for the judge to consider that issue it's clear under the regulations under government to exercise prosecutorial discretion back to the r j as i recall was willing back eager maybe not eager but at least willing to prepare an opinion on that very issue issue in order as i understand it they were just it was just a practical concern your behalf that your client had been detained she didn't wish to be detained any longer i don't blame her for that but that was the that was sort of the what you were facing and you decided you made a decision forgo that order from the immigration judge is not right yes shown them but i want to be clear there are two different issues one is jurisdiction and one is waiver the jurisdictional question is does the agency hold open any opportunity here the answer under the agency's regulations which this court seven at t n is what we have to look to is no so then the question is the more potential waiver opportunity it's true that we brought up the immigration judge repeatedly said i do not believe i have a the authority and the government has repeatedly said that the immigration judge did not have the authority and more importantly even if the immigration judge was wrong that she thought perhaps she had issue that goes to the waiver aspect so to the extent that this is not a regulatory mandated argument but rather an argument that we waived in should be to be entirely candid in list advocacy raising an argument that was not cognize the board before the agency to the extent that gets into issues of actual waiver is exhaustion and that's a pretty gentle argument and that's where futility according to this court's decision in south africa versus carol futility is that offense to waver and that is we think the appropriate construct here at perhaps another way of thinking about it is if this kind of man he i had never mentioned asylum in the course of these proceedings it's clear under the regulations that she would be able to do so now in the context of a petition for review so the fact that turner advocates requested this time exercise of prosecut reinstatement proceedings where it is again clear under twelve there were eight point three one he that she would not be able to raise an asylum claim there was that request that the government would instead pursue removal proceedings under the more immigrant illegal immigrant immigration reform and immigrant responsibility act so that tiebreaker as it were is unavailable and we think that the court's primary goal here is to harmonize the two provisions and there is no flexibility in the asylum provision and the government has never suggested that your respective status could be read in a particular way but it has suggested that there is flexibility in the reinstatement provision it's that the term relief should not be read to cover any immigration remedy possible but rather should exclude humanitarian protection we're asking for this court to simply take that interpretation to it logical ends and to cover all three forms of humanitarian protection which are asylum with the holding of the movable and convention against torture relief those are three forms the protection that can be distinguished from the you and i would say consensus is quite strong there but the second circuit and the open circuit have addressed the issue with only glancing attention and the fifth circuit and the ninth circuit have decided otherwise but those decisions  should take precedence here and we would be doing so against what some would consider to be to the extent that there's a conflict here what is the government's rendition or interpretation of the statute reasonable in your mind that's step one in chevron that interpretation will be that compel the government has given no way to harmonize the two statutes other than what it's offered which is to exclude humanitarian protection attorney general retains some discretion notwithstanding the language of the statute in order to ensure that our nation comports with international norms that doesn't seem to me to be a reasonable well you know again that maybe the supreme court has acknowledged that distinction and i asked first to st cyr the second point is with respect to the attorney general's just question perhaps to make us comply with treaties the asylum caught and more importantly even if it isn't mandated by treaties we have submitted that it is mandated by section eleven fifty eight i'm so the treaty based component does nothing to resolve those two statutes so there's a difference be a violation of our treaty obligations in these circumstances the government has never sponsored the article thirty one of the un convention which requires that there be no penalty for someone who fits the definition of refugee based on their illegal status and that's exactly what the government's view of the reinstatement provision would do if i could just briefly turn to the other reasons why chevron francis inappropriate here the first is the supreme court has divided evenly on whether chevron deference is ever appropriate in the context of two conflicting stop shoots that's because it doesn't look like the ordinary delegation to an agency to resolve some sort of policy gap but even if this court thinks that that would in some circumstances constitute ambiguity at a minimum the supreme court has unanimously said that the agency must actually grapple with that ambiguity and in this case the government has never section eleven fifty eight it's believed that its interpretation of section twelve thirty one is compelled by statute and if so then it does not have the interpretive ambiguity it is not wrestled with the interpret impunity in a way that sufficient to allow for chevron deference the ninth circuit came out differently on this but only because it said that this argument that i'm making right now is a procedural challenge that simply wrong procedural challenge to regulation is a way to notify regulation because the agency didn't check the right boxes or something of that nature but what i'm talking about right now is the reason why the agency does not get chevron deference in the context of a substantive challenge that's entirely different from procedural challenges and so the reason why the ninth circuit gave chevron deference here is simply i'm out in the applicable if i could briefly address that there are two other tie breakers judge for you mentioned the specific and the general we think that in this case the asylum statute is more specific as to asylum the reinstatement statute is more specific as to status but the asylum statute also includes this qualifier irrespective of status essential and notwithstanding other provision because and we think that makes that the more specific  morning may please the court manual for the respondent the attorney general there are a number of jurisdictional bars in this case first and foremost is the only order that's remotely before the court is the order waived it was never appealed to the board and the first appeal of any sort that took place was directly to this court despite the fact that the issues being addressed this court were never presented to the i warrant the board there was as you noted judge traxler a motion to before the immigration court at the immigration court expressed the willingness to address those issues which were the inability of the original and also her eligibility for salim despite being in a real same proceeding as i understand their position it is that they didn't have jurisdiction to consider it just or well of course she did that's that's why she filed the motion and well never know that that's that's that's her reading of the regulation the proof is that the immigration judge repeatedly said i will entertain your motion i will rule on it but  i'm sorry that doesn't mean that she had jurisdiction problem and that's that's that's an issue to be presented by by having her rule and if she's wrong the board can correct her and if they're wrong you can correct so is it your position that despite the fact that these are captioned this removal only person proceedings if they had said nothing as opposed to sort of dangling the notion of asylum in front of the judge simply have focused on the removal was exhaustion of your vanity she had up she had a procedure before the immigration court that's defined as a removal only proceed by targeting only yes earlier only m p s yes but despite that she believed that th at that he she also had the right based on her legal arguments that she was still eligible for asylum is that ok but what if she had not and entertain that belief that said nothing about asylum if she had not felt that motion we still be making that argument here in court you know because no one has ruled on that that there's an administrative process in place but the question is whether or not she was required to exhaust that argument before the immigration judge and if t idea is to give the administrative agency an opportunity to address these issues in the first instance because they have the expertise and interpret in the eye and it's regulations in the in this case is necessary for us to resolve  merits argument you know you don't get to that argument your honor because it has not been exhausted properly before the agency in this case that's that's our position that's what we thought the motion to dismiss just still pending that that issue is only properly before this court if it asserted to the immigration court and appeal to the board those remedies are available to her as of right and nothing in the immigration courts conduct provide to the contrary that she's trying to have it both obviously believed the real legal arguments supporting her eligibility for sound despite being in a written statement and she voluntarily withdrew them and what the record indicates is that there was there was a rather extensive  counsel and the immigration court about actually immigration court noted that i will grant withholding of remove all in this case then the discussion became do you want to pursue your arguments regarding asylum and there was a lot of back and forth about the impact pursuing that asylum argument and in the end she said i want that withholding order final now so i'm going to withdraw my motion saying that i'm actually eligible for style i'm in this proceeding i mean  there she she unequivocally took the issue away from the immigration court and then you can judge told her several times that if you're going to pursue this argument i will entertain it but i want to write a reasoned decision on it for the purpose of appellate review that never happened the appellate review never happened what did happen out of the blue was that this court is now being asked to sign back in the first instance on a cold record there's nothing in any agency decision before this court which is the quote of review that gives you the benefit or the thinking is of the immigration court for the poor in this case mess just not how the system works and that system or i mean that decision requires back by having  o decide if a person is eligible for asylum i don't believe it does in this in this case your honor because the immigrant there's no issue that she qualified we're not contesting the immigration courts granted withholding of removeable and by law the burden of proof for that kind of protection is higher than it would be for asylum so i think i do agree with counsel that  because the burden of proof is higher for withholding if she was granted that had she been legally eligible to apply for asylum in the reagan same proceeding it follows that she probably would have  but this circuits decisions aren't bad basically they were saying if you're going to lose before the board you don't have to exhaust the argument and that's not present the issue to the immigration court and immigration court could have said i'm not going to turn your motion because he this is a restate proceeding we're not going to look at that and the boy could have said the same thing and then you could have ruled that a prig but that's not happened here you're being asked in the first instance to decide issue which is not addressed in the only immigration court order that's out there which is the order granting withholding of removing a fair bill order for her so basically you cannot i'm sorry petitioner has not allowed the agency process to work properly and she could have and the fact that she in addition to the exhaustion issue there is a potential waiver issue in that she affirmatively withdrew her arguments before the agency is the case law statute that would have resulted in the judge the immigration judge being able to actually on the merits of her asylum requests then it clear what the result would have been well if it's so clear i'm not sure why we're here i mean the fact is she could have made the same argument she's making to this court to the immigration judge and she did in her motion albeit in a much more truncated manner but you talk about clears to the mare's just clear as to the result that the i j a would have said i can't consider because i don't have jurisdiction this is a withholding only well that's the whole point could have accepted the argument because she was making that there is a conflict between two statutes and that the only way to put two for the u s to meet its treaty obligations is to afford that opportunity the  they agreed it was a conflict they could certify it up to the attorney general for a decision on that but all that was taken away and you can't just say there's no way of the immigration court or the poor would would have  would not have accepted her argument it's possible they could have and that's what exhaustion is all about you've got to give them a shot to make a decision and then you've got something to review here there's nothing for you to review you're being asked to decide this issue in the abstract and that's not how exhaustion works so the failure to exhaust her remedies as to the february twenty sixth teen order precludes this court's jurisdiction to decide the issue that's being presented here about the interplay between the asylum statute and the reinstatement statute additional eight and very briefly this court  underlying order by statute the reinstatement provision bars review of that by the immigration court and the board and this court as well and even to the extent that those that that legal or consciously claims are implicated five is a clear expression of congress's will that people who enter the country are removed legally and reenter illegally can should not have the same benefits as someone who has not violated the laws by rip by treating the border as a revolving door that does not conflict with the asylum statute which merely says if you're in impose limitations or conditions on that as well and i would point out that section twelve thirty one a five doesn't bar aliens from getting asylum what it does is for aliens who have repeatedly entered the country after being ordered removed cannot apply for asylum every single time they re enter illegally congress was very clear in the legislative history which which makes no mention of that it's asylum and told their cat were to move nonetheless and just come back illegally and get the whole same package of options that they had the first time suit so to disincentive eyes that conduct congress made it very clear that if you reenter illegally after being removed you can apply for with holding or cat only because we're required to do that under our treaty obligation to see that and i hate to beat a dead horse but isn't th problem with this notion that she was entitle to raise the asylum claim before the i j a you've got the reinstatement pad or you've got the regulation that says that the alien has no right to a hearing under those circumstances before an immigration judge and then you've got this exception that allows for the hearing but solely on the issue of whether or not the alien is entitle to withholding so i don't understand how the i j a could possibly consider a claim of asylum under law repeatedly the same incentives to keep doing that and the whole point is that that's a statutory language and that's the regulatory history and the legislative history of  twelve thirty one a five was an act and that does not conflict with a statute that says if you're an alien and you need protection or relief from because you're being persecuted tortured come here you know what the reason that that she's cap protection will you give me a hearing and they would have done that the e u instead she really entered illegally that's that's the course of action that she chose and that's what put it in a situation of being an illegal subject to the bars of the reinstatement but no i get that i think perhaps she may lose on the merits i'm still struggling with whether or not it's appropriate to to ever do something which appears to me anyway to be the mechanism the seal or contest the administrative officers decision that his removal is a is a form which had check boxes and fill in the blanks type of thing the only option on that warm was to say if you had any factual issues or factual circumstances that undercut my determination that your movable check this box it did not absolutely allowed to have a got the full range of options she can argue whatever she she likes and she did the problem is that she would prove her motion no one is saying she was barred from from filing a motion before the immigration court arguing that she could apply for with their record indicates was i'm with john my motion because they want your grant to be tolling to be final as of today period so that was a tactical decision by the petitioner who was represented by counsel obviously and so that took those those two issues away from the i'm an immigration court otherwise the record is pretty clear that the immigration court was ready willing and able to write a decision addressing those issues had she done those could have been reviewed by the board had it done so then you would be reviewing it here today but there's nothing for you to review and that's why she's failed to exhaust her administrative remedies in this case thank you thank again is being punished for bringing up an issue that the regulations would not have allowed her to bring up he seeks to distinguish players guzman by saying the ninth circuit got it wrong and he seeks to distinguish a t n f i understand it by saying that there was no hearing or something like that there there was a hearing before an immigration judge in t n just as there was a hearing before an immigration judge in this case and in that case the court looked to the regulations which the government never reads or mentions and said that they did not allow that particular claim to be raised it's the exact same situation here with the exception that i mean he raised an issue that perhaps she did prematurely but to one point on that tracks where we are not seeking for this court to actually grant asylum to ms kind although as the government recognizes that will follow naturally from the course of the proceedings what we're seeking is to remain for the government to consider her application  the government says that the reinstatement provision acts as an exception to the asylum prevention but of course the same thing could be said in reverse each has exceptions the reinstatement provision has exceptions that the government has created for withholding of removal and convention against torture protection here simon provision has exceptions that are listed in the statute which cuts exactly the opposite from what the government says here when congress takes the time to place exceptions process so although we think that those regulations were not the product of sufficient groc when they got going with this statute we think that they are the agency from doing something different here and that goes back in some ways to the exhaustion point the suggestion that the immigration judge or the board of immigration appeals could have done anything differently is incorrect both of those entities are bound by the regulations and it's those regulations that we think are have we're asking you to decide whether a regulation complies with the statute that's the wheel house of what courts do when there are no facts that need to be developed for that it's a pure question of whether the agency's choice here to allow only some forms of humanitarian protection violates a statute that says asylum must be available regardless of that person's status just very quickly with respect to some of the policy points that the government raises that what congress was trying to do was to just incentivize re entry into the country i want to be very clear that the number of applicants who really enter the country of their order reinstated and  subject to some sort of reasonable fear reasonable fear interview is something like five percent and perhaps even more critically the exact same procedures that the agency offers right now are a reasonable fear interview flown i five eighty nine and the hearing before the judge on withholding were merely asking that those same procedures allow the slightly different claim of asylum so the thought that this is changing some sort of incentive structure