court my name is shot head hawk on behalf of the appellant's was in deportation proceedings and she was married to a us citizen spouse and in those circumstances the question of whether you were inspected and admitted into the country is very important if you were inspected and admitted and you're married to a us citizen and you have the option to adjust your status and get a green card the government was alleging in its notice to appear which is the charging document an immigration court that she was not inspected invaded in other words that she had entered the country illegally and we challenged that allegation and therefore the judge immigration judge set it up for a contested charge hearing in which the issue that we contesting is is is gone through an explorer and ultimately there was examination cross examination closing arguments and there was a final decision by the immigration judge that in fact my client was inspected and admitted into the country and i won't go into all the nuances of the particularities of immigration laws to why but there were different factual issues explored in the nature of her admission and the fact that she was waved through at the border and  ultimately the judge found her testimony to be credible and consistent and ruled in her favor so at that point the the department of homeland security had the option to amend the charges in the complaint and say that she was inspected but that she has no valid immigration status now and therefore they still want to deport or they could have amended those charges but they chose not to and having chose not to amend the charges ultimately the immigration judge was forced to just terminate the proceedings that's significant because had the government amended the charges she could have sought a green card with the immigration court she could seek adjustment of status right there in court with the same fact finder that found that she was inspected and admitted but the government chose not to amend charges and therefore  removal proceedings were terminated at that point the only option to pursue a green card would be to apply with us citizenship and immigration services and just apply for the green card which we did and ultimately the they denied the application for the green card based on their assertion that despite what the immigration judge said they don't agree with it she was not inspected and admitted in their view because they didn't find her credible about that fact so now at this point  typically after the not the denial of an i forty five you might go back to immigration court but that would require the issuance of a notice to appear and the government has already indicated that they didn't want to go to court on the issue that she was inspected and admitted and they don't have to issue a notice to case and they review the litigation conduct and ultimately came to their own conclusion that they wanted to agree with us to jointly hold the case in abeyance with the district court on this mandamus they're the ones who asked to hold the case in abeyance and they wanted to remand with the caveat that they would no longer deny it based on like the fact that she wasn't inspecting it and that they would admit she was inspecting  that to us was the picture we were looking for we wanted them to decide that adjustment of status application assuming she was inspected and admitted and that was what they refused to do that was the basis of the earlier denial so it in our view provide this with prevailing party status because it was a material alteration of the relationship between the parties that was judicially sanctioned in the form of an order in that case in order to hold the case in abeyance but never mind that order and the subsequent ones also hold as in abeyance we ultimately she was granted a green card and there remains different issues to be resolved but the parties submitted a consent decree in that consent to create memorializes all of our different agreements throughout this entire litigation and the judge entered that consent decree and that consent decree further stated that it was in forcible through the judge handwrote through a separate action but nevertheless enforceable to the separate action the having in our view we were the prevailing party because at this point the relationship between the parties has been altered whereas before they said she wasn't inspecting admitted now they admit she was inspected and admitted now at this point she has a green card she's been granted a green card whereas before she was denied these was exactly the relief we were looking for so we applied for attorney's fees we believe that the consent decree which memorialized the agreement between the parties and was entered by the court stamped it with the necessary judicial and premature to show that the judge had reviewed understood the agreement and found it fair altered the court seemed to find that the result wasn't compelled by its own action it was concerned by the fact that the parties had agreed amongst themselves to this relief and that it that the court merely memorialized it with an order when the court enters an order memorializing that agreement to remand the proceedings and and then you automatically get the relief you're looking for that has been sufficient it's not it's not required that the court order the parties against their will to to enter into an agreement it's sufficient that a consent decree memorialized by judicial decrees is official and with regard to the substantial justification issue that is really the government's burden to prove that its conduct was court in a story of federal savings had this they did it well when they indicated that the party deserves no rematch after having fully and fairly litigated the issues and the front of homeland security not only did not appeal issue do you disagree that the law is uncertain in the way the district court found or do you just not relevant to the substantial justification issue well i disagree that the  developed on that point because first off that the government does bear the burden of proving substantial justification and that's on their uncertainties according to the ninth circuit do not necessarily mean that the government's action was substantially justified even on a brand new issue first impression once or because the case that the government may nevertheless be not substantially justified depending on the facts and there is a case we cited to that point and in our opening brief but beyond that the cases that were cited were actually very different cases and those involved issues where you would have to the facts with the relevant facts were would have to be considered implicit in the decision from earlier for instance there was the cases involving asylum interviews where in order to get asylum you would have to not be a domestic terrorist but later they assume they argued that they were and so you would have to assume that the the decision was implicit in the earlier fact finder finding here you don't have to assume anything it was literally the reason for the hearing that day everything we discussed was on that factual issue the judge  exactly iran and that's our our concern is that i think they were talking to each other your honour's i believe that the government if you look through the transcript of the immigration court hearing was really unhappy with the finding that my client was inspected and admitted they were unhappy and didn't want to agree with that finding and they didn't want to amend the charges to go forward with deportation they they rather decided that they would force us into applying with us yes and then take a different tactic when we got to that stage which is what they did and it put us in a standstill that we couldn't get out of until we followed a writ of mandamus and force their hand but i think that this was a case where the government didn't agree with immigration judge and decided to ultimately adjudicated was no longer something they were going to bind themselves to and so it was really a catch twenty two situation and unfortunately with for a family of limited means they have got it again in this record and u just return to the prevailing party issue the the motion to hold in abeyance by its very nature it seems like the district court was doing nothing more than giving the parties t to work out an agreement a lot of history is set forth in that motion what's been going on between the parties and there was a description of what they hoped to now work out and they're asking the court to give it alteration of the status between the parties on that for your honor the district court itself agreed even though it tonight attorneys fees agreed that its actions did materially alter the relationship between the parties so the district court in that point agrees with us it litigation this court has held that that is that that that's sufficient that that stamps it within a surge additional permits or i don't think we should be penalized by the fact that the district court continued jurisdiction until we made sure all issues were resolved i don't i think that actually shows that the district court maintained jurisdiction to to watch over the case as it was remanded to make sure that the remand did what it was supposed to and the decision to hold it hold it in abeyance was actually requested by the government and as opposed to us moving forward on summary judgment for instance it and so that that they and themselves benefited from this act to hold it in abeyance because they they wanted to resolve it amongst the agreement of the parties and that's that's fine we and we did that but the pre litigation conduct is what is important with regard to substantial was inspected and admitted this time and so when the court agrees that it will hold the case in abeyance of all the parties remained it with the specific instruction now agreed upon which is the relevant issue at the linchpin of this whole thing and then we ultimately resolve it and then enter a consent decree with the court that memorializes all of our agreements and the court enters that and allows that the agreement to be judicially enforced or a separate action that is an order i don't think there's that you can get much more than that unless we want to say that the department homeland security can just always change their mind later remand it back and even when there's a court order involved that a consent decree that entered by the court please the court my name is bad or hawk and i'm representing the department of justice on this ija feed denial out of the district of montana your honor i would actually like to start with the second prong of egypt  and related to substantial justification as it is the government's burden to prove as your honor judge life as you've already recognized be there is no specific case law on point that relates to the issue of collateral estoppel and that is that is relevant in so far as the u s c i s in this case is looking at a different application then what went on in removal proceedings as you know in removal proceedings there is there's two stages of removal proceedings the first step is for the department of homeland security to prove  age which it did and then once that is proved it is the aliens burden to demonstrate that she is admissible into the united states and that is required to be proved by clear and convincing evidence over here the immigration judge found that she indeed did prove that she was admissible to the united states and terminated the application now when u s c i s later looked at her application for adjustment of status it was reviewing all the issues based on not only the factual record that was before the immigration judge but also it was doing its duty that this is really sad very sad to hear he didn't appeal if you think any other measure you sort of just you know try to run to another agency where you know she has to go up she's going to get her really hard and then i don't know what exactly happened i evidence that is required to do there were different factual issues that arose before us c i s when compared to the factual issues that arose before the immigration judge so when you compared the two records they weren't to review that application to know and in doing so it took an interview of music and it found that there were in consistencies within with the matter of her of her entry in fact the type of entry that happened here they were in consistencies that arose between what she had said to the i j a and what she was now saying to us yes specific include inconsistency which go to the heart of whether or not a matter of entry had happened and occurred by credible evidence so when you counsel you know the your opponent says that everything that you say was new and considered by the service for the first time was actually part of the proceedings before i j but most fundamentally what just two to reflect judge ward was concerned that the services is told as part of the application for adjustment of status that there's been this determination before the i j a and it's their position that that finding should be binding on the service they actually raise the issue of collateral stoppel and the service simply ignores it proceeds to do would a did without even acknowledging that that's an issue in terms of substantial justification they never attempt to justify what they're doing on the premise that well collateral stoppel doesn't apply here they just simply ignore that entire issue however when confronted with the petition from and davis they seemed to immediately cape on that issue because as part of the agreement that's worked out they now say well we're not going to dispute that she was properly admitted so it seems a little late this concept of collateral estoppel however in this decision denying this he was application u s c i s does acknowledge that there was a previous immigration proceeding and then when comparing the fact that were present to us c i s in the interview they were inconsistency is that arose and to address what those inconsistency is are they couldn't have been before the i g because that statement that interview was taken later in front of us yes and only when yes she mentioned that she was in front of the smuggler at the point of entry and i mention this for the courts consideration because these go directly to the credibility of whether she actually made a matter of entry when you're comparing the when you're so you see in kind of the the second full paragraph the last line talking about how the attorney wrote that during your immigration hearing the judge said immigration judge believed that he believed your story and found that you were lawfully admitted and the  the paragraph starts with your spouse your spouse or the second folder ok percy and i was reading from their last sentence the one of the last sentences second to last sentence he wrote that during your immigration hearing the judge said he believed your story and found that you were lawfully admitted into the u s so from that sense we can see that the u s c i s was aware and had i had the benefit of the testimony is eligible for an immigration benefit and u s c s held or to the burden when reviewing this application i would also note that the issue and initial issue arose when that was never considered by entry and that was related to an alien smuggling charge now an alien smuggling charge was not actually charged in the removal proceeding and it could not have been charged because at because the  if the thing was considered admitted and that would have been found under twelve twenty seven eight so the burden would be on the government to prove so shifting burdens there's no issue of rescue to come out of there to prove by clear and convincing evidence that a ground of inadmissibility does not apply however when that is the same alien as applying for adjustment of status the standard of proof for determining that  is or is not in a simple the burden is on the alien to demonstrate clearly and beyond a doubt and that comes from eight u s c twelve twenty nine a little a section c for capital and that is a higher standard of proof that the onus both demonstrate the alien smuggling charge and that that was never actually litigated so again the facts the fact that the factual predicate in this in  record was different and that different issues arose before us c i s the district court rationally found a reasonable that the government is substantially justified in concluding without binding case law to the contrary that speak briefly on two points and one of them is the fact that the district court judge found that even if collateral the u s c s was collateral he stopped its adverse credibility finding making the adverse credibility finding one comparing the record that was before it with the record that was before the immigration judge when comparing the two records that was reasonable it was a reasonable adverse credibility finding for both and this was not is not clearly unknown rania's it can't be considered an abuse of discretion for the district court to have denied ija fees in this case counsel given given all these concerns that you've expressed about credibility and so forth what why did it in the what of the department once the lawsuit is filed so readily agree to not go now saying the concerns of the department about her admissibility to answer your question ari and if i could briefly have some more time to finish answering your question thank you first of all the litigation position of the department of the u s c i s has not actually been challenged and the district court recognized that so that is not before this court but to answer your question the underlying position of the agency is before this court however to answer your question  given that that there is a question of whether collateral estoppel applies and given that there is that that there is different before us c i s have compared to the record before the immigration judge given those factors the district court probably found that the government was substantially justified and i apologize runners i didn't get to quibbles about different factual predicates that that were before us yes or not before the immigration court but if you actually look into the excerpts of record the entire transcript of the immigration court hearing is there it was extensive the issues of who was standing where and who was involved with the different factual matters that it was explored fully and initially the government asserted that various things were not before the immigration court that we proved in a reply brief and the further up sorts of record that were in fact right before the immigration judge right all along but the decision that u s c i s issued to deny adjustment of status it doesn't mention the cousin it doesn't mention any comparison between what the immigration court said and what u s c i s found in their interview there are no direct comparisons there's really no acknowledgement other then that the immigration judge said he believed your story they're undermining the significance of what the immigrant happened before the immigration court by saying that it was a story that was believed that's not what happened the judge entered an order and that order made factual determinations that they were bound book two there's no indication that anyone reviewed the transcript and compared it to the u s yes record until the written mandamus was filed and until attorneys fees were requested and now the government has gone through great lengths to try to find minor discrepancies here and there there is absolutely no reason to believe that that's anything other than a litigation position there's nothing in the record before that that indicates that the fact is that the government  e a mistake they didn't get here to the binding immigration judge decision litigation was required to compel the them to remand and make a different decision that all those agreements whether voluntarily entered into ultimately entered a consent decree so we've got material operation of the relationship we have a judicial order and there's really no substantial justification that the government can point to to say that it w hy they just ignored the immigration judge decision and reached a different outcome yes us yes is has a day had a different interview that occurred but pretty much everything that was sent to the immigration judge was sent to us and back backwards and forwards and in any two interviews you might get some different factual issues that doesn't they haven't proven that it was those particular facts that that really truly changed their mind or that they even considered discrepanc