court made clear that mr molina was deported in violation of the immigration laws the b i itself has recognized the cartels establish a fundamental change in law and it has reopen final orders of removal based on martellus and other supreme court decisions for non citizens who remain in the country illegally and even for people who react to the country illegally but after the first question you got to really answer counsel is that that illegal  decision attitude after the final judgment in the case there and applied a simple rule retroactively as this court has done also in phelps another case applying rule sixty in the civil context well i guess i'll have to read the cases you just cited because when i read the sixty b motions of the relief sought it really looks for judgments applying perspective relief and i didn't find any perspective really for it here we're looking at retroactive relief yes based on changes in walk brought about by intervening judicial authorities this i just want to be sure that you know richard or could be the case is sort of surround the kind of a fiction about what whether the law has been changed or whether it's always been this way yes and my understanding maybe i'm confusing it with another immigration case but that you or your argument is that essentially the law has always been what the supreme court has however that is it construed a statute under the supreme court's  jurisdiction when they construe a statute it's as if the law has always been what they construed it so that the law has never changed and then what happened here was simply an erroneous  and based on that kind of mental principle courts have a lot of collateral tracks on civil and final civil and criminal final judgments based on intervening judicial decisions this is even true just saying this is not a change in the law well it is a change in the sense that the supreme court is now reversed and i circuits case law that suggested that that retroactive effect could not be established for someone who is convicted by virtue of a jury trial however this court has apply intervening case law suing the meaning of the immigration statutes to allow federal pass for example when it comes to criminal prosecutions under eight u s c thirteen twenty six for legal reentry this court permits to be a itself has even recognize that it will allow reopening via its soo a spontaneous thirty for fundamental changes in law brought about by intervening judicial authority so the b a agrees with mr molina in this sense that in some circumstances a change in law should trump finality interest and allow a litigant an immigrant to collateralize act the removal or based on intervening judicial decision that indicates their removal order was entered in  so if in fact one says that a legal air has not cannot be a basis for equitable tolly gives your case finished no your hon based on the departure bar was incorrect for two different reasons well what just a minute let's let's let's examine that is there ever any place in the b i e s decision that suggests that they are suggesting they lack board's decision cites to matter armond are i know what if cites to what i did is read what it said and when i read what it says it doesn't seem to me that it says anything about a departure problem or they refuse to reopen i don't have any jurisdiction to even look at that doing your honor if if it was true that the b i had exercised i made a discretionary determination not exercise its responded already he believed what armed guards says that is that it is a jurisdictional limit if that's what if it really were saying that didn't the v i i then rule on the equitable tolling issue here and wouldn't that be inconsistent with its idea that it had no continue to rely on it and citing armendariz and finding that he did not have jurisdiction here there's nothing in the record indicate that the by the a in fact consider any of the equities in this case or any discretionary factors in considering this request pursue a sponsor section one zero zero three point two d as well as our interpretation of that regulation governs the resolution of this proceeding and then since respond there's no longer in the united states we  i don't think there's really any reasonable way to read that determination except that they're saying we lacked jurisdiction here now i understand that the decision is brief and it's difficult to sometimes tell exactly what the b a s really are that is brief should we read man for clarification few we've received a few decisions about this particular issue and doris got its own if you will justification for what it does about this maybe we ought to give the b a i that chance then to look  that circumstances of mr molina and our hope to resolve this case expeditiously he's been located outside the country now for more than four years his wife is is very ill at the moment and going through some in for medical treatment and he's really stretch sure that i have enough time with her about all this is like you know i think you've hit the tough questions right now so i mean if you have other things to say you can but if you want to sit down that's fine yeah i'd like to reserve the balance and i personally thank you outrageous you're arguing for it just seems so unfair and unjust and reasonable as the president has said he has discretion and forcing the war and of course that discretion is normally exercised to the attorney general has anybody said stood back and actually looked what the position is of the government in this with petitioner would that be an exercise in futility well any chance the government could exercise discretion to agree to let him reopen is his case i can't orders during it well after oral argument here because we're sufficiently troubled by the by the result that we may want to reverse what i'm simply saying is as as as a kind of the brief would you object whether we said to them you object if we remember that the weather and i'm putting aside the issue of our power would with the attorney general of the united states reading the order to come up with what i suggest could have been the v a in making this order where it says the respondent requests the board exercise discretionary suicide body authority to reopen because a fundamental change in law occurred then it goes on as my colleague read or we find that another regulatory provisions wells or interpretation govern since response no longer the united states we declined to exercise now the only way that i saw the government could really argue that we should not really manage this for clarification  because the words authority derives from the regulations that are punctuated by the attorney general congress delegated the responsibility to the attorney general to determine how much to reopen should be the procedures for motions to reopen and how they should be do with the departure bar should we remain for clarification that's certainly one of the avenues open to the court what would you recommend of them so we believe that the that the case can be resolved based on error of law if you will or change of law is in fact equitable tolling should be a basis for equitable bowling if we get by that or if we go you governments way nonetheless can say well the borg shouldn't have used to discretionary authority so as part of a to enforce matter of armand eris we've since put together and it seems to me that this is a situation which they should then discuss those peculiar issues of tells what they think or maybe we ought to make a decision our own regarding the departure bar which  believe that they have already said restore some quite don't apply because those those cases are factually different they don't have statutory motions to reopen and it's important to also keep in mind quite was decided the same day that kind of came out in the which means before the statutory before the before congress codified the statutory weight to the temporal and numerical limitations for machines to be open but left the van to the left the departure bar alone so you have more time immigration proceedings consistent with that purpose this court invoked as the sketches a unanimous on bond decision of the ninth circuit instructed that when there is an intervening judicial decision that renders some  deportation order invalid quote the proper remedy is for the alien to file a motion to reopen that's precisely what mr monk i did here i at we understand that i guess the biggest problem i have with that argument is the only thing we said squares was that the motion to reopen is the right venue but we didn't say and besides that give makeable tolling sure that's correct or hundred but the petitioner in that or she's me the defendant in that would have to rely on some sort of acquittal toyman supposed to be available to even the petitioner in that case well frankly i looked at lopez when i was squares all work and again based on your argument but i don't think that that was really what we were saying because i think he had a chance we even ranching the country and that's subject to a different set of immigration bars that are not a pleasurable to mr million in case one of the point where your honor petition has done literally everything in this power since the government first brought iranians legal charges against him literally everything this hour when she or that the as opposed to us just saying the board could consider and there of law and remanding my mother words could we make a ruling saying that the board should consider both to think about what my good colleague has suggested that is mediation in this particular matter as you remember there are two big issues here both of those are tough issues and we've given you the our best shot at both issues we have tried to present to the government the problems that we have with governments argument as well as suggest to you that we might have problems with your argument as well and so therefore we i don't think there's any problem with every one of us would love to have you do look really hard at mediation and i think as well we would also like you within seven days to give us a brief about whether we have any authority regarding this petition or in the meantime in other words judge harmon's question as to whether there's any authority for us to try to do something in the meantime while you try to get this thing worked out and if you could put us a brief judge korman if you'd like to give a better explanation of what you want the brief about i'd love to have you here was very is what i suggested is that if there is mediation or if we decide to remarry do we have the authority to order him to be in the interim to be returned to the united states certainly if you would please have those briefs simultaneously within seven days we would appreciate that