review and the immigration and naturalization service implemented a policy largely by memoranda directing administrative closure of certain cases cases like my client's case the purpose of this policy was to give eligible non citizens the opportunity to awa geisha regulations providing for a procedure called prepay plan we're still waiting for those regulations to this day the administrative closure policy implements a direct in ministry of closure for those non citizens affected by the retroactive stop time rule of iraq ira and not so those who are eligible for suspension of deportation but for the new stop time rule can apply for cancellation of ruvell once they have the permanent repay bring regulations the policy even goes so far as to direct sue a sponsor a ministry of closure by the b i e and there is only one exception to administrative closure provided by the policy one where they're on usually adverse factors and two only if approved by the office of the general coun my client mr is a lie or mr rizal is more appropriately as that is his birth name is eligible under the policy for administrative closure because he was eligible for suspension of deportation under the pretty high reiver scheme and with  policy in administrative leave close this case there's just one exception and that's not present here at least in my experience before some of the agencies regarding immigration practice that is often heard only sometimes a compilation of individually issued memoranda for the agency i could be different in other agencies i'm not sure but in summary i think it also under the ambit of morton release where it extended a card from regulations to internal agency says how hard do you think that reaches i think it reaches to based on the memoranda was made below and i think that's sufficient to preserve the contention here conceded leonhard he wasn't cited ideally it would have been but i don't think it's necessary as you do not need to cite every single source of authority in support contention to preserve the issue a party here is simply additional authority in support of the request for administrative closure don't you think a nd think it would have been important to put that argument with with the particularities that it's advanced on appeal in front of the board i think that would have been best practice unfortunately that was not done i don't think it's necessary i want of the things that i wonder about and maybe you can speak to it has has to be or circuit courts around the country interpreted morton morton versus ruiz as you just did to get to effectively give legal effect to the various memoranda that you point out in your brief the closest i've seen is a th circuit case aside in the briefs and i don't think it necessarily decided the issue i think it remanded it back to the agency to decide whether a card was going to bind it back additionally on the waiver issue honour's the memoranda direct sue a sponsor administrative closure by the that means the b i a was obligated to administratively close this case even if the issue wasn't raised and i think it's a matter of one that makes waiver impossible an exhaustion in the b i a here was operating on the assumption that castro tumor was controlling and it no longer is at least in this circuit i'm wondering whether we might whether it might make sense simply not not to say that administrative closure is required here under this pretty aggressive a pari theory but rather the immigration judge ought to exercise discretion in light of the  decided in which it rejected it ministry of closure as a general policy that was reversed of course as you mentioned in mason rallies and perhaps the best course of the case are the best decision would be to to give the b i e an opportunity to consider those factors now that mazen moralities has rejected castro i don't think that's necessary here i think we can prevail on the carney claim and think the kind of confused by just opposition below that the policy as well directs them to to agree to these administrative closures i'm not sure why that was different in this case that there was really no explanation offered i think has presented significant equities so maybe it would be futile ok if you'd like to reserve the rest of your time that's what i would thank you thank you that's right good morning may please the court can you meet yet ok to please the courts mandamus joslin right i'm here on behalf of respondents the united states attorney general the only issue before the court is whether the board abused its discretion when the term and in this case that administrative closure theory papering was not warranted given d h s s stated opposition to administrative closure and its position that it was unwilling to exercise its discretion t order was already was was entered against him and to prosecute those proceedings to their completion which in this case is that order of deportation on durance so repa solely within the purview of department of homeland security and that they are neither administratively marriage additionally reviewable it is undisputed here again the d h as opposed to administrative closure and would not exercise discretion discretion affirmatively in favor of this of the petitioner because no purpose would have been served by administratively closing the deportation case given d h s s position the board in this case could behalf there would have been purchased served for for the board to grant administrative closure even if it had that authority and to address judge hamilton's earlier question about the morales and castro team and its effect on this case i don't believe as you put down the briefs i don't believe that castro tune was relevant or germane to the the board's decision here the board's decision was couched in terms of administrative closure is there is one factor we're looking at that's conclusive without consideration of the broader set of factors is that in my mis reading that as i would have to say yes to your honor and a sense that the board immoralities states that rule not necessarily your honor because again the board here didn't rely on whether or not that its decision was not dependent on whether or not it had the authority to administrate requote when i just asked you though whether  but i'm with you you seem to be changing positions as to the importance of castro to this question i think there's some slight tension given the timing of when the decisions were issued in this case but i think the board here again was very careful in saying that administrative closure is not warranted given d h s s unreviewable decision not to exercise its prosecutorial discretion well to put it differently given  his decision to continue to prosecute the deportation proceedings that were before it they were before the immigration court and the board of immigration appeals and so it's the retape arraying whether or not repay pairing was available simply wasn't germane given the decisions you continue to prosecute the case that was before it right now and again with respect to the a cardi our government that petitioner advances his primary argument to this court that argument was never exhausted as we argued in the grief both of the filings the petitioner made for the immigration judge and to the board acknowledged the discretionary nature of administrative question but the internal guidance memoranda all couched it in terms of recommendations should use or gives or terms that don't mandate administrative  any means i don't think that below that was ever argued and so to the extent that he is now arguing that the agency not only had the discretion but was obligated and that it was mandatory for the board  to administratively close the case and given the internal guidance memoranda that that particular argument was never exhausted below and discoursed under this court's rules exhaustion is mandatory because if and under his if under petitioners point of view he had a right to administrative closure because it was in the sense that it was mandatory and so exhaustion for that additional reason was required by the statute and i don't agree that it was mandatory and the board here certainly didn't address that argument because it was never made before it and i think it's important to that the board be given that opportunity to decide  i'm sorry mr right sorry for interrupting you go ahead finish your thought i got a question and i was just i was going to make the point the petitioner had the opportunity to make that argument especially since our presence on the books and it was already decided it was already in the on the i know it wasn't presented here that's your view but there surely has to have been other cases where non citizens have made this this type of a cardi based argument based upon the policy memoranda it set or the proposed the board your honor and again i think this is important to underscore petitioner's argument that these memos issued in two thousand and twenty years ago now bind the board completely ignores the legal and and administrative last kate that existed back then versus the last case that exists now and the most important landscape change is the fact that the prosecutorial discretion authority was moved from the attorney general where it resided in two thousand to the department of homeland security secretary where it now resides since two thousand and three with the creation of the department of homeland security ignoring that important development i think is what separates this the the attorney general now the book the board acting as a delegate to the attorney general is simply does not have the same kind of authority of prosecutorial discretion that the attorney general was delegated to it in two regarding the government's argument that the agency decision denying administrative closure was reasonable because the decision to repapered was committed to this question of v h s this argument ignores the cardi and agreed upon procedures in the memory st the memorand commit that discretion that's the entire point of a car requires the government to follow its own rules even self imposed rules when it otherwise discretionary terminations regarding the futility questions we were going over  e so i guess the question other words is what's the point of dia just as alternate citizen is going to be not to repay for this is a premature issue we don't have regulations yet however the proposed regulations provide a potential answer the proposed regulations read in any deportation proceeding that was administrative leave close the service shall prepare and serve a notice to appear if promulgated this would appear to require the department of homeland security to serve a notice to appear and report the paper the cas e and that's why the timing of this this decision is important the administrative closure was supposed to occur now wait the regulations then make a decision on repapered and it was going to be pursuant to and consistent with