good please the court my name is erin o'neill baker i represent the petitioner was our a lot and miss walton is currently detained by the department of homeland security based upon a removal order issued in two thousand twelve that removal order was based upon her criminal convictions however all of her criminal convictions have been a fully and unconditionally pardoned by the state of connecticut that was after the order of the order correct about to be removed and there may be cases that allow us to have jurisdiction even following an order of removal for constitutional grounds that's that's that's going to open question but  f r section one thousand and three dollars d is the departure bar and if she is with if she is deported from the united states her motions to reopen will be withdrawn so this court will be divested the removal order based from two thousand and twelve that's already established there is this final removal or however the channeling that the channeling method is completely divested from this court if she is ordered removed but let me ask another question you represented that isis taken the position that age is there and that the that position is that no pardon issued by connecticut by the board of pardons which is the statutory administrative body that whole that holds this power pursuant to govern a tauriel delegation can ever satisfy the pardon waiver clause i didn't see any documents saying that what's the basis for that assertion it was verbal ie notified in person face to face by not only a deportation officer but by a trial attorney from the department of homeland security and i was told directly that that they will not recognize the connecticut pardon waiver because it is a legislative pardon not an executive this seems a very important determination to have been made only verbal i mean is that the official position of the department of homeland security in these sound like two people told you that it's either unlikely or will never happen but you don't have anything in writing taking an actual position on that do you have the briefing by the government but also your honor we have motions to reopen pending with the board of immigration appeals that can make that determination who can adjudicate this specific issue and however if and if you have not if you file for verbal a verbal face to face acknowledgement that they will not grant a stay and not only that they will never i was told ice will never ever release her until she's deported any of this in the record honor this was these were made these were made directly to me but i was six months ago yes your honor so none of this has been confirmed in writing you didn't write back to them and saying this will confirm you've told me x y z several things your honor i have a motion to reopen pending with the board of immigration appeals i have an emergency stay pending with the board of immigration appeals i have this action pending here i have i have requested writing that miss was our o be released from detention she has been detained for almost six months that was denied what was your emergency motion your emergency motion is based upon this is determination that ok you didn't bring an action against i guess i'm trying to think about way another way you might have litigated there so it could have skewed have saved some so somebody might have jurisdiction if we had a decision from them the board of immigration appeal we would have a straight channeling preserving this court's jurisdiction to hear that that decision right what i have done in the past in addition to this action and the other actions i have  or not it's just a question of how to how possibly we have jurisdiction well i think you definitely have jurisdiction to preserve your perspective jurisdiction your ability to you know from for me a basis for years to action but it does not prohibit specifically all writs act in the in the effort to preserve this in the morning your honour's may please the court i am william tong the attorney general for the state of connecticut appearing here as an amicus connecticut is here this morning to protect miss walton a connecticut resident from i unlawful actions to deport her on the basis of criminal convictions for which she has been fully and unconditionally pardoned and your honor as you said just now the merits of this issue are so important that they need to be determined by this court and your honor asked your ramekins but on the other hand the question of jurisdiction is really critical i mean you have to address that question those are critical questions your honor but i'm here can't help you or you can help a miserable so that's that's that's what we have to wrestle with i do understand that your honor and i think the fundamental problem here is that there's a jurisdictional trap for miss walton because she has a pending motion to reopen and whether ice is correct or not they're seeking to deport her and they're saying well she can press her claims and make her arguments after she's been here for this have you discussed with ice with the u s government  place and and so that will let this sort of this play out so so that motions aren't pending and motions to reconsider and pending i think that's the very purpose of the stay and while we're here this morning to let this play out before got a little bit more weight than the individual petition has there been any discussion with the government that in connection with this particular case which is of great importance to the state of connecticut they should reconsider the situation not to grant a stay and to remove her immediately your honor apart from a short conversation this morning i have not personally had those conversations except i should note that i previously argued the same issue in the st circuit about a received any formal statement or communication from the government from any aspect taking the position that the pardons granted by the board of pardons in connecticut will not qualify i'm not aware of any direct communication on that issue but what i should note is the b i a has taken the position that connecticut pardons do not count for purposes of the pardon we have a clause in the thompson versus bar case i just got another call late last imminent and immediate nature of miss walton's potential removal of course as my colleagues are underscoring we have adjourned stiction all threshold question that is made tie us if i may your honor with respect i understand the think we submit on behalf of the petitioner that you have jurisdiction under the all writs act and to preserve your review of a very serious due process question which is if miss walton is removed and then is required to make her claim on her motion to reopen a broad unfortunately once she leaves the durst the departure bar will die best this court and miss walton of any opportunity here that case and for her to make her arguments for this course scores so it is a it's a catch twenty two dollars right if she leaves then she gives up all her rights and this court has no opportunity because of the departure bar to revisit this question and determine whether ice and the board of immigration appeals ought to honor as it should connecticut pardons under the pardon waiver clause and to not allow this court that opportunity would fly the face of sixty years of decisions by the board of immigration appeals and federal authorities that have held that pardons like pardons issued by the state of connecticut by an executive branch agency a board of par us the ability to act in certain circumstances and particularly on a rd th motion to reopen that hasn't there were where there is no final order it's it's tricky to get to because petitioners counsel did that i do think and i've emphasized this morning that there's a jurisdictional trap that if she is removed she won't be able to make her arguments and is there an ocean reopen will evaporate or cries and other question is there is there some other avenue available to the state of connecticut that may not be available to the petition of individual lee to circumvent what you've described this is just a trap you're i think i'm here this morning making a larger equal sovereignty and also its th amendment rights and those are larger issues that this court ought to preserve and you think that the all writs act should allow us to get to that issue if the already sacked is to mean anything it's to give this court the power to vindicate weighty weighty concerns like the th amendment and the equal sovereignty of the state of connecticut thanks very much thank you we'll hear from the government jurisdiction and although the th amendment is a is a is a way to consider your situation in a serious legal issue there is no exception in two hundred and forty two for serious questions of law and in order for the court to even undertake that issue as the court rightly pointed we can't be reconciled with the express exclusion of regolith that if the governor of connecticut had issued the pardon would the response of the federal government in this case be different  i cannot speak to that in the reasons that there is no final or of adjudication by the board that addresses that particular question that goes to the prematurity of the court's interference in this case as it is currently posture the court's discussion about with opposing counsel about verbal verbal representations made by ice just reemphasizes how premature it is for the court let me ask you you said in your in your brief that if miss walton is removed and the departure bar is triggered she would still be able to position from abroad if i understood you what you wrote correctly that's correct and so could you explain why that is i thought after after removal arguments made on motions to reopen or motions reopen are deemed moot and withdrawn what have you and so i don't really understand why she would be able to pursue this very important question to her and to the state of connecticut from a distance of she removed but what path is available to her more there are multiple outcomes because all each which each of which depends upon what is actually in the board's denial of the motion reopen assuming that the board doesn't because the board has not taken action on that most is still pending we just don't know what the board so you're saying that had her remove all would not trigger the board's treating the motion to reopen as an withdraw all of that motion is that right your honor if i can just clarify and make sure i understand your question decision that she can appeal from reviews extort is limited in that case because that is a discretionary action by the board because it sounds in their board's regulatory authority which is inherently discretionary in of the mahmoud case the board  there is no authority that requires the board to exercise its discretion in petitioners favor so were she removed and where the board to deny the motion to reopen and word to simply stay nothing more than it declined to precedent governs both of those reviews but those are reserve very narrow and circumscribed so the state of removal doesn't guarantee that the kinetic pardon the connecticut pardon issue actually is presented to the court why would the why would the board ward deal with  bar that's a separate separate question as it is your honor and i don't know that the board would invoke the bar but the departure bar speaks to circumstances where an app and an applicant the regulation you know one thousand and two point three or was it a statutory motion to reopen your auto my assumption is that it's a it's a pursuit of the regulation and that comes from the petitioners the position of page eight where she states that her motion is untimely under the statutory framework which imposes a ninety day deadline and as a result there's a reason as i understand it is that she fears if she is removed the board will that fact that because you can get the same result whether she's in the united states or whether she's in the united kingdom why was it you move and emotions withdraw well if she's removed the us if what we are with respect if she is removed and the departure invoked then the board does not reach the issue of the connecticut pardon if in contrast a stay is imposed and she appeals from the from the united states and the board which is simply denies the motion reopened based solely on an invocation of  ready which is inherently discretionary and addresses nothing further and there's no positive address in the board's decision of the kinetic pardon issue now there is no indication that the board has misperceived some underlying law and or mahmoud the board's declaration of kind of generally it seems to me are very strong but underlying this case is a fundamental question and that is whether the connecticut pardon is accomplishes what connecticut hopes hopes a decide and why wouldn't we be the ones to decide and why wouldn't we expect the government to cooperate with us in reaching that decision there either all points well taken however the late late introduction of the connecticut part in this case i mean this literally it appears as i read these pleadings about thirteen years from her st conviction about seven years from her nd conviction and at the very last hour when but who's currently under an order of deportation would get relief or release that litigators question why should she be in the same position your honor she at this late stage of the game her only recourse is to the wor consider consider the alternate consider that a petitioner who presented a connecticut pardon which i understand has been they've been doing for hundreds of years earlier on in the process so that it was submitted to the board for adjudication of full adjudication the st instance that's the vehicle that the court needs in order to undertake the issue in this this case as postured simply is just the wrong vehicle because it's it seeks a premature interference of the court in clear violation of you know if there are other similar underlying issues relat pardons in around the country or in the nd circuit you are i'm i'm sorry i'm not prepared to i'm not prepared on that point but i can i can make some inquiries and find out if i would you provide us a letter by the end of this week on this yes or i will do that have a similar framework where the government's not the governor issuing a pardon but the legislature if that's pending before another quarter in in ministry of body appointed by the governor it's because i'm i understand there's some differentiation potentially maybe  tween automatic legislative pardons and administrative pardons at the behest of the governor that are discretionary and case by case because where you've indicated is that this very important issue  percolating and so we're not strip the courts the federal courts are not stripped of their ability depending on the procedural posture of getting at this underlying potentially cost to shall issue yes that is true section doesn't lie here why understand that i understand that your argument with respect to this case is that they pursued an avenue involving the all writs act and therefore there is no jurisdiction but there  you i think suggested there are other avenues if it's less of late in the game so to speak pursuant to which someone might actually be able to present the underlying issue of the effect of a pardon we're honored when it sounds like you want to say what i cannot deliver is is a government position on a border that has not yet been issued but what i can do is present information i think that we have that it responds to i think in this case you're right that that is a broad that is a broad brush to paint with the i do not know what discussions have occurred between connecticut and ice and which is the enforcement arm of the h s and likewise ineffective the pardon that was issued by the state of connecticut is there anything in the record that would preclude that inference well there's the there is an administrative record because the cases immature  there is no positive authority that requires the board to exercise its discretion positively in despair so if the i mean a pardon in the ordinary operation the statute eliminates the basis for the removal order altogether so wouldn't it be fair to infer that the board was declining to give effect to the pardon issued by the state well that i think puts the cart before the horse with all respect your right of the that assumes  that the court takes connecticut's position on the issue and that may alternately be where we're now i'm just asking what would be fair to infer from a one line tonight you hypothesize that that is one possible outcome but i don't think you can and for anything at all about the underlying merits of the critical issue i think i think a one line denial simply means that the board has the board has chosen not to exercise its discretionary authority there's no now even in the context where the the base is the entire basis for able to represented by the state attorney general here today there is no board of education in this case and that must happen st before we can talk about whether or not probability is dissolved or not and so what we have is in left  then the court is left really with just a removal order that is still valid from two thousand and fourteen that has been repeatedly refused to abide by and is not a part of the country that she finds herself in a procedurally difficult posture with minimal room