know good morning your owners i'm william frick for both mr sings the i believe that the issue here is is the right to be married and  it's a it's a protected liberty interest in the kerry dealt with it in the immigration context i can hear you but there would be a little less effort if you're a little closer to the microphone now thank you of course i believe that this the issue in this case is due process in deciding a matter of fundamental liberty and that is the right to be married in the right to live with your spouse d m v carrie is a case in which five judges in the supreme court found that there was a there was a liberty interest in marriage and also  counsel i thought that your argument was that the wrong agency adjudicated the matter but how is that how does that relate to the question of a fundamental right to be married well it's not it's not so much that the wrong agency has if they wanted to there is a discussion we do have that option still we do have that option still your honor but if due process reprocess requires a right a right to be heard not not an people play people plead guilty they waive their rights to trial they have a constitutional right to a trial and they waive them but people decide to represent themselves under ferrata they can waive their sex and i'm a right to counsel but your honor nobody here is waving that right he just wants a forum both of these men want a forum in which their adjustment of status can be and you know he had a forum he didn't take advantage of it he he was not you only are allowed to ask to reopen ninety days after an order removal neither one of these men were married during that period so they were precluded from going back to the e o why are by that regulation and that's why we're seeing that it was an after acquired right it was it was but it's still a fundamental right but whether you got a fundamental right or not and i could have a fundamental right of a religion and i could say you know i'd like i live in colorado i'd like the alaskan court to decide that for me please and the l by say well you may or may not have that right but you can't you can't bring in the alaskan court and so the first question is you've got to decide who can give who can give the relief and then we'll worry about the remedy and seems to me your biggest concern is the one i'm at least most concerned about is you've asked for relief from the from the u s c i s the department of homeland security which i don't i have real doubts whether they've got the authority to give you any relief and so before we were about whether you have a right subset of right let's worry about who you're asking for the relief from i that that is an issue and we believe that probably both agencies have which says that in the case of an alien who's been placed in a deportation proceeding which your two clients have the immigration judge has exclusive jurisdiction how to get around that because he's arriving alien because people who are bloody but he's not because the arriving alien where he's in the position of an arriving in a writing elian has been defined as somebody who has come into the us at a port of entry there's another definition is not relevant here and one of your clients doesn't even allege they came in through a port of entry the other of your clients most of the time in several hearing said he did not come in through a port of entry once he said well maybe i did that i'm only doing that on information and belief but the district court basically said not may be quite as explicitly as you could have it essential he said no i don't believe that and you didn't appeal that those are those are those are issues that the agency should educate which  agency any agency that we can get before we you can't get stuff or you're asking for is me you are asking for relief from the department of from the department of homeland security case losses that an applicant for adjustment of status should be assimilated into the position of in a writing alien he should have the same rights as in writing and there's an exception to that so that regulation for arriving aliens but all of the cases that i've thought about assimilation talk about people who have gone through a port of entry and people who are lawful  permanent residence and your claims are neither lawful permanent residence nor have they entered through a port of entry and so so it seems to me that those cases are distinguishable actually my both of my clients tell me that they did come through that's now with the record we can't rely on a private conversation between you and your client that's not what the record shows the record the record does show that way the i forty five that we felt for both of these men indicates that they both came in as visitors the reason that they that's not the same as being paroled into the united states which is the just part of the definition of it arriving alien a somebody who comes here on a tourist visa and then overstays the visas not an arriving alien but for purposes of adjustment of status we think that the case line to kate's that they should be put they should be assimilated into that position that's that's why i just overstayed their visa because they asked one of them said that he was here that he they came in you know came into a port of entry on information and belief and as the district judge that never heard of somebody who said that he that he doesn't know how he got here but thinks he got here on information and belief well those are those are questions that the agency could adjudicate in the standard is are they believe a ball about how they came in you can't you can't get before us c i s that's the problem counsel well we can't but we can't get before the iau why are either in there we need a forum and this is a fundamental right a fundamental liberty interest and not to have any procedural due process or maybe even a just give you the form of the united states supreme court and say file an original jurisdiction up there i mean just because you need a forum doesn't mean you get one but with a fundamental liberty there i mean those are as applied to aliens that if one of them is a us citizen and the other one you're listening to cross the border i think all of those all of those people have due process and they have you know a serviceman joins because he wants to join a prisoner has due process from his family in the criminal court we have no forum because it's been more than ninety days that count that you have for him but you but take advantage of it and then you're quite got married after that they i don't think thing to do but you can't five hundred thirty if you're not married and they weren't married until after that ninety days so you got a literacy you have a little bit of a sequencing problem and and we feel we feel like this is a would just like to point out the case yasu in the in which is the one three case and in that case there was a fundamental libera fundamental interest in that was yasu claim to be a u s citizen and that he lacked a forum in which to raise this and so he was seeking actually through district court but through a hate us petition and this court found that that was the inappropriate method for raising it and even though in that case his ninety days to reopen his removal proceedings had passed this court said you are entitled to the process that you get and the process is you go back and you seek sue aspired to reopening to reopen those proceedings and yes it was not the of right during the ninety days that period had passed and once the alien had done that then that healing would have an ability to appeal if that was a wrongful decision because of whatever reason  because he had not made a frivolous claim to u s citizenship but this court in many cases has simply said there is a process there is a process set out we look at the purpose of realized in our rear it is to really channel the ways that aliens seek relief that was the purpose of these and this court has found that there is a process in place and part of that is an alien who is in removal proceedings which both of these aliens remain in removal proceedings until their their orders are executed and process and the place for them under regulation to pursue any late acquired claims for adjustment of status is through was cracked in finding that u s c s lacked jurisdiction over the applications and so what remedy does he have now anyway is there any remedy well he is permitted to go back to an immigration judge and while at the opening file for reopening and the immigration reopen the removal order i thought he had to go to the but know well the b i did confirm the immigration judges order so i suppose in this case he would have to go to the v a any possibility for discretion for either of these gentlemen well it's possible that either plaintiff could join with the government and they could both seek reopening before that has there been any communication along there has not your honor to my knowledge  was did admit to committing asylum fraud as well and if i may just quickly bring up the issue of whether there is a right to marriage a stake in this case there absolutely is not both individuals are already married  there is no threat from the government to their marriage or to their right to get married opposing counsel invokes the usually i'm not arguing the there isn't a right to marriage but we don't need to address that case there absolutely is a right  it simply isn't isn't invoked here because the both marriages were entered into before these cases with respect to didn't be carry which is the supreme court case that was issued in two thousand and fifteen the supreme court didn't even reach the issue of due process or the right to marry that case or there's all of simply on whether a visa denial issued by a consular officer satisfies the facially legitimate and bona fide test that case is completely and apis it here what we have is a very simple regulatory interpretation the regulation that is at issue it's twelve fifty four point two and that regulation couldn't be more clear if an alien's like both mr sayings are in removal proceedings and if they do not qualify as arriving aliens which neither does they can only seek reopening from an immigration judge not from u s d a s for that reason the district court in both cases issued the correct decision and just a couple of minutes your honor the the i os you case that counsel mentioned he was a u s citizen at the time that ninety days started to run after his removal order so that's different in this case  because neither miss neither of these mr singh's were married for years after their removal orders so they they did not have that ninety day window in order to take advantage of five of it with regard to a  fundamental right to marry and especially the case didn't the kerry i do believe that four of the judges in that case indicated that there was a fundamental liberty interes fundamental and liberty interest in living with your with your spouse and the the other five judges were split two of the judges said that they're not reaching this this issue and  believe the other three judges said there was no fundamental liberty interest but if you look at that it it is it's more undecided than it than it is decided but there's a there's regret any of the last minute changes in the way one decided to give the case