and my question to you is how did he raise a challenge to the exercise of discretion he did not explicitly talk about discretionary aspect all the attorney general promulgated a regulation i believe it's one thousand and three point two a that says the board has discretion to deny emotions reopen even if the party earlier it's not raised to the agency and it's not race to us i mean how do you think that we should why do you think we should address this argument that's being developed here in a few minutes of argument  injustice when we look at manifest injustice do we look to wherever the exercise of discretion assuming that it was a beer was totally briefs argued and you in your break cite one oath one thousand and three point two almost as a throwaway you don't argue that it has an impact on  do i mean i would do cites a case that talked about how there was no regulatory grant discretion so i would have assumed you would have argued while one oath one thousand and three point to a remedy that get what is your argument for why there's no error here it's not it's not one thousand and eight point eight that's not what you argued let me just add to that that you are an administrative agency you're not a district court began a is and so we cannot simply affirm you and any other grounds which we can think of if an error has been made to cherry we have to send it back to you to be to make that argument we don't have the capacity of saying well if you had made that argument you would have won that's something that chen rebars us unless it's futile but how can we say yes when we really don't know what the agency would have done had sorts of things they did not go on brooke question of whether i would do this and whether it still applies if there were no free and what the cases that come after do they didn't do anything right i mean the problem for us in this case is it really neither side has made the argument that that one would have to decide the case or to put it more generously to use the agency said that's what it was relying on then the other side would have been able to say that really that regulation has not been interpreted by courts to overturn plenty of cases in other circuits after they this regulation which have continued to rely on and there's a case in our circuit which seems to i'm not saying it's binding on us but it certainly seems to go that way so that you know if that's would be agency had said then we ever side could have said this is what the problem is but you didn't say so we can't even passing would there be an objection from the government to remain and to let the agency decide the question of the interplay between the doing and one thousand and three point two way absolutely or are there would be an objection to that  deference to your honor under understood but department of justice but nevertheless post back and that is because the citation authority the agency did make clear again maybe not saying that regulation but did make clear its understanding based on broad discretion conferred by the attorney general to grant or deny a motion to reopen now i understand there could be an argument that that's a reference to two thousand and three point twenty one thousand and three  but the supreme court did not say that nor was it specifically referring to it i me ask you this has the agency this in any decision that it's rendered discussed how asking you with respect to remain and if the agency wants to take the position that up with you recognized an exception for certain forms of relief to the discretion one one thousand and three question but you can't tell us that it's never done that and it's troubling when you consider that after one thousand and three two way courts seem to still be relying on operative you know your honor there are understood  and the question of how that ties in to any number of cases that have come both before and after this is a question that we would have to decide address discretion the other side did not i'll reply brief in which you had an opportunity even if you were caught off guard to just address discretion so well this court maybe it would be a good time were for some decision at some point this is not the case that there were other side had more than an opportunity both in this proceeding the board has broad discretion conferred by the attorney general to grant or deny a motion to reopen so for your purposes anyway as you argue to us there's no discretion you have to deal with that language and dharti that they have broad discretion conferred by the attorney general that obligated you it seems to me to argue that that language does not apply that case i can buy that his bond and even that little bit but you did say that language about broad discretion doesn't apply because of if you had said that opening statement