eight b of title elite u s code does not allow the respondent to delegate the authority to issue removal orders and promulgated the implementing regulations the second is that titian or should have been permitted to seek asylum under a u s c about fifty eight in proceedings before the immigration judge and the final argument is that the board of the agency did not follow its own procedures in adjudicating the petitioners claims regarding the first argument essentially what we argue is that the section addition twelve twenty eight the providing for expedited removal of certain aliens who have not been admitted to lawful permanent resident status and who have been convicted of aggravated felonies predates the creation of the department of homeland security the statute delegates the authority to issue these expedited removal orders to be attorney general this was not a problem prior to two thousand and three because the i the agency charged with enforcement and adjudication of immigration matters were both what was completely under the attorney general however when the h s was created as part of the act those functions were separated the d h s was delegated authority over a broad set of immigration matters however not all of them section eleven zero three eight one specifically provides that those powers and functions and duties conferred upon the attorney general remain with the attorney general they were not actually parcel back to d h us now in other parts of the statute congress resolved this for example in a section twelve twenty five providing for a different type of expedited removal the stature explicitly states that a felonies to be removed that's been viciously that does not mean that the d a chess has the authority to issue removal orders in fact the d h has is of course under different provisions of the law and power to execute those orders and carry them out but the issuance of the actual removal order has traditionally been within the purview of immigration judges this is particularly important where the determination must be made on certain issues such as whether an individual has in fact been convicted of an aggravated felony and another way in which this is of particularly relevant actually ties into the second argument regarding whether petitioner should have been permitted to apply for asylum the barrier to an asylum application and petitioners case is actually one of the regulations implementing the scheme to allow that the access to carry out or to issue removal orders pursuant to section twelve twenty eight b there is a regulation providing for withholding only proceedings in the case of individuals such as petitioner who are subject to these expedited orders but who nonetheless establish or expressed a fear of return to their country of origin that regulation refers the case back following a reasonable fear interview to an immigration judge to adjudicate that up with haitian but the regulation limits the immigration judge to only consider withholding of removal and relief under the convention against torture why is that a problem and i never made a felony provision which i think that i am fortunately don't have supporting evidence that it's not the bar to asylum with and section eleven fifty eight or a first not two individuals convicted i go to felonies but two individuals who having been convicted of a particularly serious crime pose a danger to the community of the united states the subsequent language does state that an individual convicted of an aggravated felony is considered convicted of a  particularly serious crime but the aggravated felony conviction in and of itself is not far enough location for asylum within the language of eleven fifty eight it also would response to me like those pieces all add up to your client is not eligible for asylum well your hon missing your honor the second part of that particular serious crime restriction requires a finding that the individual be deemed to be a danger to the community united states and and  made that determination it was never considered because the agency felt that he was ineligible to even apply for that relief so in a in the offense for example in the case of petition or the criminal offense at issue while the agency did consider whether the matter of y a l a criteria to remove it from the particular serious crime round had been met the crime actually involved a single possession with inten of a very small quantity of cocaine and the record shows that the conditions under which this offense was carried out was not such that it presented a danger at least the matter should have been addressed as ours sounds like on those issues though you want us to revisit the factual findings your honor the what we're asking is that the case be sent back to the agency so that they may address the issue  essence they never considered for asylum they never made this determination because they simply thought he was ineligible but if this court finds that he is actually eligible to apply for asylum how would we find he's eligible without revisiting findings about whether the crime for example affected younger oh your honor and regarding that this is tying into the third argument really about whether the the agency follows procedures the threshold matter of whether he is eligible to apply for asylum at all is a separate legal question whether somebody convicted or not this petitioner in particular the whether the type of conviction categorically barzan from applying for asylum under eleven fifty eight finds that that is not the case then it would be appropriate for the agency to revisit the issue of this particular petitioner and make the fact findings that are traditionally left to the agency as initial fact finder so the threshold question of whether the aggravated felony conviction bars applying for asylum is really what allows this court to send the matter back for to cation as far as the facts of this particular case and this all goes back to the way in which section twelve twenty eight b is implemented by taking the issuance of the order away from the immigration judges and transformations apartment of homeland security that creates this path that petitioner was in where the case gets routed back to an immigration judge but following a regulation that restricts the judge's ability to consider certain types of relief that he would otherwise be eligible for so that is what we're asking this court to find that individual such as petition we barred from seeking asylum and and thus the matter should return to the agency for determination as far as this particular petition regarding the for example and the third argument is as your honor pointed out the matter of  the effect on juveniles it does bear note i think that the most glaring part where the agency to now follow its own procedures and adjudication of this case was that the matter of why all factors the board departed from what the immigration judge  felony the department of homeland security properly initiated expedited little proceedings in accordance with law and regulation petitioner was given all the process he was due under the statute and regulation and pursued the only that was available to him as an aggravated felony which is withholding of removal and protection under the convention against torture before this court he has a because not raised any meritorious legal or constitutional challenge as to either his expedited removal order as was argued previously congress and acted u s c twelve twenty eight b and gave the attorney general authority to make regulations as co  mandate attorney general at the regulations and provided that i asked service officers would issue both issue the intent to remove and issue the final as we noted in our brief congress gave the choice of removing aggravated felons for not lawful permanent residents either and proceedings before immigration judge or an expedited removal process and regarding his the denial of his claim for relief isn't eligible for withholding of removal onto dispositive grounds so this court would have to find legal air and on both grounds in order to send it back to the agency the first is that he has not shown any legal or constitutional air but the agency's determination that he failed to show a clear probability of persecution on account of protected ground doesn't challenge the agency's finding that he singled out for persecution and in his brief he noted briefly that there was an incorrect pattern and practice analysis however he didn't expand on that that would be a factual determination that the court might get to even if he had raised it today and so that's a dispositive ground that the court cannot call the agencies felony which qualifies as a particularly serious crime and what's important and this ground is that the immigration judge and the board both agreed that let me back up the attorney general a matter of why al stated that a drug trafficking aggravated felony which is what he has been convicted of is presumptively a particularly serious crime withholding of a mobile purposes and the attorney general in that case listed six factors and provided that an applicant needs to rebut all sex factors every single one both the immigration judge and the board agreed that he failed to provide at least one of the factors that he very direct role part of the drug trafficking scheme that agency found that he had held drugs for a couple of weeks and made the finding that he therefore it was not only a peripheral part of the scheme that's a factual finding again petitioner has not raised any legal or constitutional challenges to that finding so therefore and that finding along the court could also uphold the second round for denying the withholding on the proceedings before an immigration judge so why does this dispute about whether it's the attorney general or v h s make any difference since apparently in the end the immigration judge under jim supervision of the attorney general made these determinations it doesn't make a difference and he in his case and whether he would have been and remo and he could our petition for the a before this board and bring legal and constitutional challenges and he's in the exact same position that he would be if under that twelve twenty eight he  saddam thank you art i'd like to begin addressing the history of the case as was just raced but it has been going for a while this case began in proceedings in our twelve twenty nine for an immigration judge an anon detained setting then the department of homeland security filed a motion to terminate those proceedings in two thousand and ten in order to proceed pursuant to twelve twenty eight b they took no such action after the judge granted germination for several years actually the not t until essentially a week before that case was up for all argument before this court at that point it took a man and the proceedings up proceeded with under the dear chest percent to twenty eight b the difference in how he arrives before  is that taking him through that twelve twenty the pro process through the department homeland security makes him subject to the regulation that limit is available relief to withholding only that regulation does not apply in proceedings under twelve twenty nine