at st glance mr thomson situation sounds fairly simple he was a permanent resident of the united states he was involved in a fight when he was a teenager he was later convicted of nd degree assault in connecticut which served as the only basis for his deportation order now he has obtained a full and unconditional pardon from the state of connecticut for the only crime he has ever committed based on simple logic alone since mr thompson is no longer deportable she should not be deported yet almost two years after she obtained a pardon the government continues to keep and keep them in immigration detention in alabama while his parents his children his siblings his cousins  say all live in the new york connecticut area and threatens to deport mr thomson to jamaica a country he has not lived and for the last twenty two years in order for mr thompson to remain in the united states this court has t of law when it held that mr thompson's mr thompson continues to be deportable because connecticut pardons in only connecticut pardons are not good enough that they are alone somehow do not satisfy the requirements pardon waiver clause under the immigration and nationality act with the court's permission i will focus mostly on the jurisdictional piece and let the attorney general focus on the validity of connecticut pardons under the federal law  reopen the denial would have been entirely reviewable this on the other hand was a sewer sponte motion to reopen which everyone agrees is highly discretionary interestingly enough the board's decision denying mr thompson's motion to reopen its earlier precedent decision in matter of g d saying that's to a sponte motion to reopen are reserved for quote unquote truly exceptional circumstances they give the quote  denial and how do you respond to that well i find it troubling your honor to foresee a scenario where the government would purposefully avoid judicial review by simply not giving any unconditional pardon which makes somebody not deportable this is important enough for the board to either reopen the case or explain why somebody who is not deportable should still be deported and the nd the  rd and the th circuit when they analyzed their jurisdiction to review legal and constitutional issues with to a sponsor motions of motion denial they actually said that if it's unclear from the decision what the board relied on it's proper to remand the case back to the agency to have the agency explain themselves to make sure that the agency while exercising its discretion did not rely on an improper legal legal premise we're not just to confirm we're not asking this court to review the discretionary determination by the we're asking this court to make sure that in exercising their discretion they used the correct law at the applied the correct law which in this case we allege that they didn't have the discretionary nature of the agency's decision further that is correct your honor based on the language of the decision this court should find that the b s a in exercising its discretion relied on an incorrect interpretation of the law so this court should send the kids back to the b a a and order them to revisit the case and look at it from the correct legal an and i would respectfully suggest that in this particular situation unlike lewis and many other cases where it was unclear what the b i decision was relying on sheer everything is very very clear when presented with mr thompson's pardon the board immigration appeals because of the significance of the event the board of immigration appeals felt compelled to produce a reasoned decision to explain why they're not accepting that as sufficient evidence of quote unquote exceptional circumstances and they explained it in a very detailed fashion and they said that mr thompson is not intitled to a pardon waiver this is a clear legal issue we're not asking this court to challenge the discretionary determination we're asking this court to correct the incorrect legal standard that the b s a used in exercising their discretion i certainly understand the challenge in other cases where it's unclear from the session what they were relying on that here this court doesn't need to nd guess what was going on behind the closed doors of the b i a reasoning so to speak right there in the decision it's black and white  e lewis i would respectfully suggest the lewis case which said that there is no jurisdiction to review sue a sponte denials is simply not applicable because lewis and some other old circuit cases addressing the same issue dealt with situations where the court was tasked with reviewing the un cabin discretion this is not what we're asking this court to review we're asking this court to review all the legal principle this court has not yet made a definitive ruling whether to all fifty two a two d serves as a jurisdiction re store so to speak and the government argues that it doesn't because to us find him motions are not suggest as one of the circuit courts held that the statutes recognition that legal or constitutional issues are reviewable even when a statute makes the underlying decision discretionary is reflective of the general principle that may please the court i'm william to on the attorney general for the amicus state of connecticut and i'm here this morning because the outcome of this appeal will have a profound impact on people living in connecticut including mr thompson the board of immigration appeals wrongly decided that mr thomson should be deported even though the state of connecticut has granted him a full complete and unconditional pardon that waves his deportation under the connecticut which are the kind of executive discretionary and individualized pardons sufficient to waive deportation under the law now i understand yes your honor the president president or a governor for over sixty years the board of immigration appeals and other authority has held that what the pardon waiver clause really mean the president and the governor or executive action by a state now the state of connection connecticut vests supreme pardon power in the board of pardons and paroles which makes a discretionary individualized and executive decision to grant a pardon forty seven dollars other states involved some kind of appointed board six states including connecticut use a board of pardons and paroles as the supreme pardoning power in the state now in connecticut this is an executive branch agency the board of pardons and paroles it is entirely appointed by the governor it is controlled by the governor through the appointment process and the agency the board reports of the governor administratively the actions taken by the board of par paroles are completely discretionary and executive in nature and individualized the pardon if one earns a pardon is the product of an exhaustive process there are dozens of pages and interview and it takes almost six months to get a pardon and in contrast to what are known now as legislative pardons which are automatic and occur by operation of statute congress said in passing and fifty two we don't mean those types of pardons in the legislative history it was very clear in referring to quote called legislative pardons that occur by operation of law that's not what congress man  when it passed the pardon waiver clause it meant executive discretionary individualized pardons and that's why again for over sixty years the board of immigration appeals has held that connecticut pardons and pardons like those the way the only part of the legislative history that clearly addresses this issue is that language that refers to so called legislative part and that occur by operation of law but it's pretty clear that congress understood what it was talking about when referred to so called legislative pardons and i think that's why the board of immigration appeals for almost sixty years has set forth a task frankly for determining whether or not a discretionary executive pardon by a state not by the governor qualifies for purposes of the pardon waiver clause it's set forth that test in a case called insulting murphy in two thousand and two and the fact that case  related to a connecticut pardon and in that case the court said that there are three parts of the task for determining whether a board granted a pardon counts for purposes of the  full and unconditional pardon number two does it come from the supreme pardoning power of the state and number three is it conferred by the executive through executive action and all three of those elements are present here  there's no doubt i don't think anybody contests that mr thompson's pardon is full complete and unconditional as far as the state of connecticut is concerned for all purposes the fact that his criminal record has been erased in connecticut  nd the supreme pardoning power is vested in the board of pardons and paroles in connecticut nobody else has that power nobody shares that power and number three the pardon is concerned for by an executive branch agency appointed by the governor it requires executive action meaning somebody has to do something somebody has to make a decision it is issued by the board of pardons and paroles technically i believe it is given under the  gubernatorial pardons count for purposes of the pardon webre clause pardons in georgia pardons by a mayor in nebraska pardons by the us high commissioner for germany pardons in alabama which by the way  are created much the same way as the connecticut board of pardons and parole was created in alabama it is created by statute and the governor appoints the board and that board  exercises the supreme pardoning power in contrast there are other pardons that have been held by the board of immigration appeals to be ineffective because they're automatic because they occur by operation of law because they are quote unquote legislative in nature louisiana pardons for example that occurred by operation of law pennsylvania pardons some of which occur by operation of law i think that  committed to this rule that pardon issued by the state of connecticut and similar pardons from other states count for purposes of the pardon waiver rule and this circuit has held in the bar dallas k and also the significantly from its own precedent it must confront the issue squarely and explain why the departure is reasonable and as this court said in the shaw supermarket case the board it may not depart from prior subsoil m t o and that there may not be a rule for monday a rule for tuesday a rule for general application and then deny relief outright in a specific case i submit your honor that's what's happening here we have a settled course of adjudication for over sixty years and now the board of immigration appeals using language from the developer dollars case is now zigzagging away from that sixty years of precedent without any explanation in the thompson case let me close with my last couple of minutes here by saying i'm also here because  connecticut the equal sovereignty to which isn't it isn't titled to recognize eight a pardon from connecticut would honor the equal sovereignty to which connecticut is entitled to do otherwise and to recognize pardons in georgia and alabama but not connecticut depart from our federal system really and to deny connecticut equal standing with other states and the forty nine other states who states in closing connecticut's also here because it cares very much about connecticut residents like mr thompson and ensuring that he receives the equal protection of the loss to which he is entitled to treat mr thompson differently because he was a connecticut resident and received a connecticut pardon when he would have been treated better if you were in georgia or alabama or new york is to deny him that equal protection thank you which this court has upheld twice mr thompson stayed in the united states and was able to eventually benefit from a pardon from the state of connecticut sixteen years after his conviction the board declined to exercise its reopening authority finding that far in georgia the power to pardon was granted to the governor who delegated his authority to the board of governors much like in the eye in a where something is delegated turd granted powers granted to the attorney general and the why even if the court were to find that that they did have jurisdiction like the nd i'm a th circuit some found for a limited scope of determining whether or not there was a legal error those courts have recognized in this court should also recognize that the remedy is to remain and to the board to exercise unfettered discretion under a cracker legal reasoning and even if the board were to deny reopening again based on a correct legal understanding that that decision would be meaningful standards the court shouldn't be interfering and that shouldn't change based on the argument that the alien present or the reasons that the board gives in denying reopening to hold that would st of all render meaningless come get congress's limits on motions to reopen an alien could keep piling motions to reopen and if they were able to have eventually benefit from a pardon ervay could tour of their conviction you're essentially holding the board to reopen despite the fact that there's no statutory regulatory basis for the the exceptional circumstances period i think that everyone would agree there is nothing for the court to review the mere fact that they provided analysis for why they felt that their discretion was not warranted didn't change the argument that would be for the board to decide not not for me to decide but  that's not how connecticut's current regime is it is actually tory and if you look at the legislative history from the state of connecticut in eight hundred and eighteen dollars they actually considered granting the pardon power to the governor and declined to do so because they purposely wanted it to be a power of the people and they granted it to the legislature for that very reason they wanted it to be subject to popular demand by electing their legislatures that would actually size of the power they wanted to be different than how things operated under the crown where the sovereign had that basis of remove ability and this was back in one thousand nine hundred and fifty eight when the grounds of remove ability were very different from what they look like today so the mere fact i mean it's still the executive and again that's a city ordinance that was a civil infraction and not a criminal offense which limits the pardon pardons by the governor or president of the united states and the interpretation of that language is what does connecticut executive like pardoned count as a gubernatorial pardon no well there i mean there is no question that the creation of the connecticut board of pardons was a legislative creation that has existed in the state of connecticut for two hundred years this is the question is how do we interpret the be that it actually limits the board's discretion again we don't know the factors underlying because the board had no duty to articulate every single reason for denying finding it wasn't an exceptional circumstance and  still think your honor i have three brief points to make number one the case that addressed the recent st circuit decision then address the course of education issue was raised versus two thousand and eighteen two again we're not asking this court to order the b i a to reopen as a matter of discretion this is not what we're doing we're asking this court to tell the b s a what the law is before they exercise their  a could have said we recognize the pardon but we still deny the motion to reopen as a matter of discretion except that it didn't they said were denied the motion to reopen because kinetic compartments are not good enough mr thompson's decision relies upon talks about quote unquote truly exceptional circumstances what the government failed to note is that in that decision the board actually said if the person becomes clearly eligible for a leave this could be an exceptional circumstance i would respectfully suggest that our case goes even further mr thompson does not need to apply for any relief from deportation mr thompson does not need to show that he is eligible for some discretionary benefit needs to be reopened and terminated because he's no longer deportable this is precisely the type of injustice that the sewer sponte mechanism was designed to cure thank you