jurisdiction but the real idea change that i don't know if the court has any questions about the direct appeal versus petition for review issue if it does i'm happy to answer them otherwise i'd like to proceed to what i consider to be really the central question which is whether or not a temporary resident under saw had a well settled expectation under st cyr to apply for to twelve c relief then in this case there's no dispute about the facts that the hell of the petitioner was a temporary resident at the time he took his plea that he subsequently adjusted to permanent residence was placed into proceedings within st cyr and we contend he does he pled guilty at the time to twelve c was available he in fact had discussions with his attorney with an immigration officer and a probation officer about the effectiveness but he wasn't entitle to the seven years of lawful residence and lawful doma style after the commission of the offense in other words if the government does not act against the alien time till they've accrued the time then they are able to do so so the answer is no he was not entitle to to twelve c relief at the time of the plea because he didn't meet the seven years requirement for the decisions of this court the wall case and now the newly c regulation which specifically addressed the same severe cases say that he would be qualified if the only issue was did he have crew enough time then he would qualify what the i j a and the board seem to not unique to so applicants every lawful permanent resident can face a loss of their status for a number of reasons both by simple the administrative action of the district director or through the court process there are statutes that allow for the revocation of petitions when marriages either are thought to be suspect after permanent residence is granted or when they simply terminate within a certain period of time and there that catch all section two forty six that allows for a revocation whenever it appears to have been in providently granted and of course any lawful permanent resident can be placed into remove all or at that time deportation proceedings court has decided first of all that for purposes of travel in employment a temporary resident has the same rights as a permanent resident and it's important to note that two twelve c was related to travel  apply to returning residents it was the court's finding that under equal protection it had to apply to haley is already in the country and mr gonzalez was placed into proceedings as in writing out the very person for whom two twelve c was actually is mr mr gonzales mean mr gonzales clearly has noticed as he when he leaves the country that when he comes back in the two twelve c is not available it's been done away with for assume what i would think a fair thing to say if he had known the law what would he have known and in two thousand and three he would have known that as of two thousand since the sincere decision he could apply at least under our now well but he is not in the same category as as the as the aliens and things here is well he's in the same category to the extent that under the controlling law he had accumulated seven years lawful was clearly in effect and to twelve c would have barred from the mission into the united states an alley and who had been convicted of a felony involving moral turpitude he was even told that by his lawyer so he clearly knew when he took the pl that there was a problem but at the time he wasn't deportable if he didn't leave the country at that time they couldn't place him into deportation proceedings if they did leave the country he would face the problem within admissibility however by the time he actually left the country and got put into proceedings he had both accumulated the time and notwithstanding nation of two twelve c by ed on april twenty fourth one thousand nine hundred sixty the us supreme court had held it was still there will to certain aliens and what we believe is the central issue is did his status as a temporary resident preclude him from having the same reliance that he would have had as a residence commenced upon the filing of an application for amnesty which is what he got the same special agricultural work that was part of the legalization program often called amnesty he got that and that the time that he accrued since his plea counts towards that necessary time so he never was the subject of a revocation proceeding i'd also like t point out one other thing that even if they have commenced revocation proceedings it doesn't mean that he wouldn't have been allowed to stay first of all he would have been entitled to you know the same due process anybody would be entitled to in a revocation proceeding second although the government points out that the revocation section of your statute does not provide for any waivers it also is silent on section two twelve c which is a waiver for relief has been the subject of tremendous litigation as i said this circuit and many other circuits including the second circuit held that you remained eligible in the sense that if you accumulated the seven holding was the subject of regulation it went through the standard regulation procedure where notice was posted regulations public comment was held and the attorney general concluded and now that is the law that for purposes of the terming eligibility the two twelve c under st cyr you have the requisite time if you accrued after the conviction we cite the regulation in our brief any other any case then that incorporated the the regulation interpretation advocate do not know of any cases since the regulation i know of cases prior to the regulation there cited the wall case being the leading case the regulation is a codification of the wall case perhaps one reason why there isn't any case where at least none that i know of and i haven't heard of any from the government either is because no one would seek to challenge that finding because the attorney general is tasked in the first instance with responsibility for applying these laws and the attorney general did go through a process that is fair and is required which includes notification from all segments of the community that would be interested in immigration law and they concluded that the proper way to apply st cyr was to allow it to be available to allianz who were not eligible of the time of their conviction but became eligible later on and i do not know of anyone who is challenge that application since it is the government that is determined that that is the proper way to proceed it's unlikely that they would be appealing and i certainly doubt there would many allianz who benefit from that it would appeal and so patience from the b s a is that incorporated that interpretation none that i'm aware of i am aware of no press that i would only know of precedent decisions they'd be the only ones that would have and i know of plea and i do not believe the board would make such a finding in light of the regulation it's important to note that regular filing one way or the other either the person is eligible the person is not eligible i'm just asking you are there any rulings one way or the other oak no i know of no administrative or judicial decisions that one contrary to the current regulation that run consistently with the regulation as you interpret it there has been any rolling consistent or inconsistent with the growth and therefore we believe that the appropriate thing to do in this case is to remain and this matter back to the board immigration judge for a finding as to the application for two twelve c the immigration judge in this case in our opinion handled the correct way by taking all the tests and making them  it appears that this court should construe the appeal from the district court judgment as a petition for review i'd like to say however that procedurally there are some distinctions between this case and alvarez hurrah which suggests that perhaps the court should not review the b i decision and that is in alvarez barajas the alien like dealing in this case his application for to twelve he really was denied by the b i a at that point he properly filed the petition for writ of habeas corpus and district court because he was barred from seeking review of the eyes decision in the court of appeal in light of his criminal conviction on his record denied behaviors petition  diac had passed while the appeal is pending in this court understandably said although congress has not specifically said what to do with cases that are pending on appeal as of the date of the enactment of the  we think it would make sense to review the case as a petition for review this case in distinction when the vi denied aliens application for two twelve c really the alien did not file a petition for writ understandably this court issued an order to show cause thing why should we just dismiss the appeal you have a criminal conviction under eight u s c section twelve fifty two eight to see we don't have jurisdiction to review appeals filed by aliens with criminal offenses in response to that the alien filed a motion to voluntarily dismiss his appeal and that that the appeal be transferred to the district court where it should have been construed as a petition for writ of habeas corpus this court granted that motion to transfer the case and then said specifically we don't say we don't decide now whether or not the disorder will have jurisdiction over the hague use but if by the time the case had been transferred in a fact before when the hay be a petition is on appeal at the date of an accident here the petitioner would be getting revue of something that he wouldn't have gotten if he had followed the procedures so i think a strong argument can be made that this court should dismiss the petition for a view for failing to exhaust proper judicial remedies addressed the merits assuming the score concludes u summary of the regulation is correct but i'll explain why it's really irrelevant in this case in a nutshell the petitioners argument is that the b i erred by denying the few twelve's the application has he pleaded no contest to committing a lewd  and that's because at the time he pled no contest to the charge he was in a lawful permanent resident into twelve c relief was only available to lawful permanent residents so that leaves only his claim that well although i was a temporary resident at the time i pled no contest to the plea i had an expectation that have become a lawful permanent resident under the softer visions of the special agricultural workers program  his argument was a little more nuanced because he still had the regulation that you agree and i'm trying to pin down what regulation you all are green but the regulation allowed him to continue to accrue time to become a permanent resident something because the regulation allowed him to continue to accrue time then he was eligible because he became a permanent resident sometime along that continuum so would you respond to that my response to that is that the government doesn't dispute that for purposes of calculating whether or not an alien has established the seven years of lawful doma style in the united states that this court has said that you can include the portion of time that you are temporary resident rajjo so we don't dispute that the time would have continued to tick up until the removal proceeding the government's argument is that's really a red herring it's irrelevant because that's not why the immigration judge or the vi in this case tonight his application for the relief it had nothing to do with how long it been here how long he would be here it goes back to st cyr which is at the time you enter your and if between the time your attempt residence and when you would adjust to a lawful permanent resident you commit a crime the attorney general can deny your application can deny your temporary residence status and deny your application to become a permanent resident so the alien is on notice that while i've committed this horrible crime it's really not reasonable for me to assume that i'm going to adjust my status to lawful permanent resident because the attorney general can deny my application for permanent residence based on this criminal conviction this is argument as i understand it is that you let the time go back now as a lawful permanent resident and so therefore he has the enter your plea so it may be that he actually did become a lawful permanent resident under the soft revision light doesn't mean that at the time he entered his plea he had a reasonable expectation that would happen in fact he should have had the re expectation that wouldn't have happened and why did this horrible crime that he committed because the attorney general has the authority to say to someone who's a temporary resident if you commit a felony or you commit three misdemeanors in the united states after you become a temporary resident i can say you're not going to adjust your status to a lawful permanent resident so but the attorney general didn't do it in this case the attorney general didn't do it it's unclear why the attorney general didn't do that that's not in the  record you know there are some cases in the ninth circuit which talk about the sheer number of participants in the software program and the limited period of time that the attorney general has to investigate all the applicants in the software program it could have been negligence who knows but the fact that he actually did adjust his status that no one caught the fact that wow this guy has committed a really bad crime he he shouldn't become a lawful permanent resident the fact that that didn't happen i don't think a spouse the government from saying now that at the time he entered this plea he didn't have a reasonable expectation that he would become a permanent resident so he may have had a reasonable expectation that the time would continue to tick in terms of the stand listening to seven year lawful almost trial requirement but that's different than saying at the time he entered his plea he had a recent expectation that he would actually become a lawful permanent resident despite this crime that  consequences with your attorney and it's reasonable to assume that one of the immigration consequences is whether or not you'll be eligible people see relief down the line in that case unlike this case there was no reason for an alien to assume he wouldn't be for to twelve she really here there's an obvious reason why the alien wouldn't think you'd be eligible for to go to twelve so you really because you just committed this bad crime and in the statute the saw provision it gives the attorney general the discretion to than a lawful permanent resident you know there are some provisions in the statutes which allow the attorney general to refer to revoke lawful permanent resident status so is that any different than than what this guy was facing well it's it's significantly different in a very significant way and that's because the rescission provisions in the statutes allow the attorney general to revoke lawful permanent resident status when the status was improperly given in the first place but that's different than what happened here what happened here is that there was a criminal a criminal conviction in between when the application was filed and when the person was going to transition to lawful permanent resident status so i think that's a very important distinction so the person in this case is much first i want to make one thing clear about what the board referred to is that i took issue with when the state of mind is relevant i agree that the state of mind is relevant at the time of the plea i think what i said and perhaps that wasn't clear enough was that reasonable though for the court to do that because the aliens at that time are in our interest are expected to be very young to know what the law you know doesn't know what their remedies are correct and in this case there was testimony by the petitioner which was not found incredible was actually accepted as credible that he had three discussions with his attorney with the probation officer and with an immigration officer who interviewed him in custody and they told him that as long as he didn't leave the country he wouldn't have a problem because at that point it wasn't a deportable offense it became deported when that was correct so he was put on notice so certainly he is actually more evidence with regarding regarding this petition of course is that he did leave the country wherever he was he was what i'm saying was he was aware at the time of this plea what problems he fed and the state of the law was such that if he managed to avoid any confrontation with the government for seven years he'd be eligible for to twelve c relief one of the reasons i suspect that the supreme court didn't engage in a detailed factual analysis of reliance insane series it's almost impossible to fully construct what turns and clients discussed here fifteen twenty years before and that's why they simply left it as if you qualified under the law and now the regulation that we keep talking about was a regulation that was promulgated by the department of justice on september and i should have but i can provide the court with that or a copy of the regulations themselves if the court wishes the other thing i'd like to update is that the government brief said this should be reviewed as a petition for review they seem to have steered away from that now but i don't think that their analysis is correct because the intent of congress which is stated in the albert speranza case was that the real id act would apply to any final administrative decision at the time of the nachman the board made its decision on september second two thousand and four and real id was enacted may eleventh two thousand and five there was a petition for review filed and matters is a very complex area and there are repeatedly cases that distinguish between determining where do you have you have jurisdiction for the term and your own jurisdiction you can determine whether or not a particular case an aggravated felony in this case the court did not at the time believe that this was a matter that came outside of the prohibition on reviewing certain chris certain appeals by criminal aliens however it was filed in under the real i d act it would appear that it should be treated as a petition for review in addition there were some important issues raised in the heaviest as to why he wasn't in the country and one of the are we don't have to go into them in great detail because i don't believe that it should be treated as they hate us but there is a problem when aliens are how is very far from their counsel and then move suddenly to location a v s requires pretty detailed contact with your client they either have to sign off on it or authorize you to sign off on it that's what they were aware of that your time is expired is there no thank you thank you thank you