immigration judge and the chief judge of the board of immigration appeals issued memoranda to immigration judges and the board of immigration appeals which definitely quote unquote reserved grounds of suspension of deportation person so who have their hearing first scheduled joining the tired right before the effective day as opposed to people complaint there was litigation or some kind of claims it was discovery maybe i'm wrong in that what i'm asking is if the status of any plate of was similar to the people here ninety seven that language was individuals for whom the immigration judge rather reserved a decision or schedule of the merits hearing on a suspension application between those states and the end friends try that plain language is that there must have been s some plaintiffs that fell into that category of having a merits hearing schedules and in those days and i know that the board of immigration appeals in this case decided that that language meant that the clearing had to be the government's argument there is that a lie and a distinction between those who were rescheduled during the operative period and those who were scheduled said you know you have to stop and think about that those who are rescheduled during the operative period and those who were scheduled during the sa applied and they discovered and the agreement covers a rather narrow pocket of people who were directly affected by the crappy model that they were fully expecting to come to court on a given day during the barahona period and prepare and submit their application and and present their evidence the immigration judge but because of the crappy memo they were directly impacted their hearings were pushed to a day after when the law had changed to their detriment when we have these other aliens like in this case given time to come forward and plead and then they'll have a hearing where they say i want you tell me what type of relief you're going to apply for so the immigration judge can then look at the schedule say ok i need x amount of time to address this relief and here we were a situation where the alien come forward file your application and then i'm going to set it for a hearing date down the road when i have sufficient time to hear this and that's what happened in the case this hearing actually occurred so getting back to my point about the night you have to have two par this case the immigration judge held a hearing so you don't have the requisite physical presence and on top of that you don't have the good moral character and on top of that you don't have the extreme hardship necessary for period hearing was scheduled for april with her well that's the next you know well that person you have to understand that the reason that the barahona agreement was narrowed to such a civic period time with april first is really the cutoff date for any effect from the caribbean on the because the law changed dramatically on april first one thousand ninety seven where the stop time rule took effect and through subsequent legislation we know that the stop time rule is hard and fast regardless of what the person was in order to show cause regardless of whether it was a notice to appear type situation so april first had to be the cutoff date prior to april first because hearing that occurred only for were subject to the new law and the new law has held sway over the past  cover in the april first because that's when the law changed it had to the court had to apply the new law then the second prong then i realized it wouldn't make sense the second proc talks about it being continued to a date after april first but in fact of the hearing was continued to the date of april first then the person's application would be subject to the stop time rule and all these other restrictions right yes your honor that's the new law there's no will first or thereafter i agree to the wording probably would have been more correct to say on or after april first yeah and in terms of what everyone was intending yesterday i mean i think that's pretty plain that that makes sense if if the language of the agreements and maybe i'm blending into the next case but if the literal language of the settlement agreement seems to cover people who had a hearing nationally scheduled in that window that period and then have their hearing continued to a later date on or after april first which i guess practically it was this date in october not why are people who never had their hearing scheduled but just never had you know the full hearing scheduled but went in for a scheduling conference and got a i'm not going to bring anything else in and let me have my hearing now well your honor i think it had a chance i can't i cannot agree with you that the attorney general is complicit in any less than adequate representation of a million receipts we know that here as far as legal representation is concerned so so there that's what i mean i mean we just close our eyes dollar that people suffer your i appreciate your concerns about that situation i time rules well i think in these particular cases it had to go over simply because of the way that the scheduling of the court with this is these are probably the first court dates they could find available for these cases perhaps we don't know for sure but we don't have the direct evidence that the barahona agreement that all the parties agree to protected a certain class of aliens and that certain class of amy's narrative that aliens who could show direct impact because they were ready to appear that they came prepared for a hearing in an immigration judge said i have to push you back because of the know not the aliens that we have in these two cases who are aliens who were coming through the process or the normal speed in time and from all indications unfortunately the way things worked out they landed on the other side if there's a problem with the wording of the me i'm not so with the wording the subtle and not so sure this court should be addressing it the parties who are agreed should take it to the district court because that's where dispute resolution occurs under this memo and i think that's where we need to be as opposed to trying to put new spins and protect larger normal length of time ok to be scared maybe even fairly prompt for hearing to be scheduled but on the other hand we've got this memo in the background that's that's urging everyone to not do anything until the new law goes into a fact and then even then to hold off until october so so how do we know putting aside whether the agreement is literally covers it i don't we know that this i j of the virals case wasn't just sitting there hearing a day or two later than it could have done it in order to subject them to that to the more and then on march twenty first the application was filed in a hearing with such a fairly quickly for april first that's unusual i'll admit that unusual but well you know if you can maybe see some sort of nefarious reason there i can just of equally say gee from february to october that seemed like a long time it didn't matter for the purpose of this case beyond a parole one but those two scene one of them seemed wildly out of sync it wasn't clear to me which one it was i suggesting it was really navarro that happen to land on april one for the purposes of navarro it might have been not quite short enough but it as you look at it it doesn't suggest deliberate effort to put it beyond an april first line if anything they just happen to one to do it a little further down the line really make sure of it april one differently there's no differences there and setting on april one is starting in october no not really your honor not now certainly not now when the law is proven otherwise the whole difference is whether it's in march or whether it's back in april and i'm but i just still for the if there's i think in the absence of evidence to the contrary i hope we would give an immigration  benefit and say that that was probably the first date he had available and he was using his time judiciously and put this one right there on april first i certainly would do that normally but with this memo in the background i'm just not sure it also looks to me like he was ready  to completely ignore the crappy memo it really give us just more credit than he did and then you would otherwise give him he was fully ready to ignore the chief judge crappie and mr schmidt memo saying hold off he said no i'm holding a hearing on april first two different things going on because of the feb twenty seventh gathering right boy the word hearing gathering was not a marriage hearing and you're not saying that it was i'm not saying that it was that a merits hearing was not continued until october rather on february twenty seventh a marriage hearing well it's scheduled in october and there may be sufficient and acuity to bring in the first half but there's no continuation of the merits hearing at any point in time what the record  or moved and the sense i get from the settlement agreement that which which which may be incomplete like i was a practicing lawyer that you have a problem you think you'd rather something that solves it and sometimes it doesn't entirely say it and yet you make it work somehow but this seems to be a somewhat different concept that there was no postponement of the merits hearing at any point in time there was simply a scheduling of it and that word may be ambiguous but a scheduling for a date certain you know october way past the date that's going to do your client any good with regard to the change of the law and then nothing further was done with that date it actually proceeded on that date so it could be said that the proceedings were adjourned or the matter was continued but the merits hearing was a merit hearing is you know regardless of whether the february twenty seventh date was a master hearing or just for the filing of the application or an individual merit hearing she could have had her hearing scheduled between february twenty seventh and that the judge did not say any hearing merits hearing between february twenty seventh and able for it was because of the crappy memorandum what evidence is there of a well the plain language of the crappy memorandum mandates that the judge what sense would there be that he'd have an intention to grant but is acting to push beyond a certain date because he intends to granted but he's got a limitation on this number because of the crappy of them and i don't see how that could could be inferred given that he is receiv least on notice at that point that she wanted to satisfy the statutory eligibility oh and i assume when he receives the application with every twenty seventh he knows what it's an application for yes that doesn't translate into intention to grant but just receiving an application well under make that decision and there's no reason to assume the i j a had an inclination either way at that point in time if were uncertain about the intention of the i j a then i think the reman would be required for that purpose but in addition to that you know he did study hearing he did hold a hearing on october twenty fourth one thousand nine hundred seven that is at least an indication that he did not find the application frivolous in fact in his oral decision he actually stated that he found her testimony to be credible but character because she did not have a police clearance he stated that she had not quote unquote satisfy this court that she had the requisite ties to support a claim of extreme hardship however those findings followed seven years in this particular case and there for the respondent does not have the requisite minimum seventy years continuous physical presence in the united states to qualify her for such relief now the government in a footnote in its response  immigration judge pointed out a few things that were missing from her application that she can supplement at this time one is the absence of a police clearance to get a police clearance all she needs to do is submit her fingerprints  and those fingerprints are submitted to the f b i or the california department of justice it's a pretty simple process the other thing was just the absence of tax returns so she can go to the i r s and get copies of her tax returns in addition i do want to point out is whether she hoping or now say he should have done and schedule it real fast if you didn't come up with counsel by october it's pretty safe that she was going to come up with counsel by march to present a better case not i haven't i think you're probably right with regard to the settlement agreement and not considering other grounds but in the context where you're asking us to read the settlement agreement with a look toward your kill your client's plight because you might not fit squarely with the language of the settlement agreement by the same token the government can say well she didn't really shouldn't fit within the settlement agreement and that's why you're right that the other factors aren't determinative now but it's hard to say how this would have worked out better for her if she got an airing in march well you are the other what was what was  clearance you know it's highly likely that had she been afforded the opportunity to get the police clearance she could have met that standard in addition the only basis for his extreme hardship finding was that she didn't have to fish in ties to the united states under the b i  sachs there's a multitude of hardship factors and at the time the suspension statute required consideration of the harsh to her not just the hardship for those qualifying relatives you know the fact that she didn't have enough quote unquote ties to the united states with a mi deportation he may have developed a record further and of course he would have had an obligation to develop the records further finally there is one indication at the end of the hearing that she had children i don't actually have children right now at the time she had children since then or not but what i want to know is the government said that if the if the agreements language is imprecise it didn't really save in these terms said if the language is imprecise rather than our appellate panel trying to stretch the language because of the purposes of the agreement the the matter ought to be the interpretation of the settlement agreement here is not of national issue that really requires further development in the district where the problem is the literal language of that i mean for your client yes at least from my as i see it the difficulty you're the main difficulty your occurred one thing i wanted to point out is that you know the language is also phrased in the alternative the language that we're talking about here says individuals for whom the immigration judge either reserved  merits hearing and that hearing was continue and you know i based on the crappy memorandum based upon the fact that he continued it out in october based upon the fact that a hearing was ultimately held when he did have the c under that new start time rule and the judge stated i understand so the judge at least indicated an understanding at that time we talked about the trial talking about the trial attorney for the government to show cause had been issued on august eighth of one thousand nine hundred six and at that time he also asked her when she entered the united states because that was one of the allegations in the order to show cause and she did give the date of entry at that time so he should