this is not a complicated case it really is not a complicated it's become a complicated case because of the underlying mess that was created in the record below and where the board of immigration appeals and the immigration judge simply did not look at what was happening and this was a direct result of the ineffective assistance by prior counsel ok as my brief details prior counsels when the government sought to pre term it mr go application for two thirty seven a one h relief that got the immigration judge ordered prior counsel to file responses on two separate occasions as to why the client was eligible he failed to do so comes out matter of a gore does prior counsel fall a motion to remount no he does not he lets it sit the appeal gets tonight he then misses the thirty day deadline to file a motion to reconsider based on a gore he point the case is a complete mess that's reason number one why this case is a mess reason number two is that the immigration judge completely missed the ball of what was going on before her mr  permanent resident he was seeking a waiver under two thirty seven a one because he committed fraud in securing that residency she on the other hand found that he wasn't eligible to apply for adjustment of status to become a resident he wasn't seeking adjustment of status he never sought adjustment of status he was already your residence so we have this decision saying we have mr gomez saying i'm seeking relief a she denies  deported because he's not qualified for release b she never discusses relief a which is a two thirty seven a one h waiver she completely misses it then obviously you've got reason three he has just so mean he meet all the other four that he was of it was admissible and two thousand and nine except for the fraud except for the yeah well if if you didn't do except for the fraud you would never get now be a programmer w v piggy and not express they say as you when you come into that program you're on you're not admissable help me with it's completely your honor that's not correct of w v p is simply the visa waiver program where certain countries are exempt from needing visas certain nationals in certain countries are required to get visas to enter here so people from those countries for example the most european countries in this case argentina which no longer hasn't this today but back then it was a visa waiver country you can enter the united states without a visa that permits you to stay here for up to three months now it also limits your rights here and one of those limits one of the very strict limits is you can't apply for permanent residency in the united states except for three very limited exceptions one is you marry a u s citizen two you apply for asylum or three you apply for a residency under the cuban adjustment act which is precisely  was admitted under the visa waiver program ok then he applied to adjust status by giving a false birth certificate claiming he was cuban the immigration service approved that and gave him a green card  permanent resident the immigration service later discovered wait a second is that burst if it's fake so you up for a cure the residency through fraud of congress provided for a pardon for that as a matter of discretion he could go before a judge the judge will hear out the case and if he had the necessary anchor relatives which he does he's got two u s citizen kids he can apply for that pardon and the judge will decide whether he did or deserves the pardon as a matter of discretion and keep his residency the problem is the immigration judge missed the point she didn't realize he was already a resident she thought he was trying to get residency in front of her and chichi had no jurisdiction beef to do that if he was still a visa admission issue your honor has to do and if you would if i beg you to hear me on this one in one nine hundred ninety six the immigration reform act was an act which completely changed immigration ok and it instituted removal proceedings and what happened was you've got this provision of law that says this waivers available and the issue was whether or not it's available to someone who adjusts that status to become a resident in the united states whether the term admission into three seventy one age reverse to someone who adjusted status while in the u s to become a resident or only applies to someone who got their green card at a u s consulate abroad and enter the united states the issue was unresolved because prior to the ninety six law it was a matter of connally which the board held only someone who entered with an immigrant visa to get residency was for the waiver but someone who would just it was not  we hold that an adjustment of status is an admission for purposes of two thirty seven a one h waiver and that someone who would just status is eligible to seek it because the adjustment itself constitutes an admission that's why the admission is important in this case and that's the whole issue in this case but it is a bureaucratic nightmare let me ask you a legal question the interpretation of our ins section two thirty seven a claiming it was ambiguous and therefore they have the jurisdictional why is it ambiguous i believe us if there was a plain on its face i would hardly be bound by what they said that's correct but it's not play on its face and that's what the board struggled with and it finally came out with a decision saying we believe it is ambiguous and it could be read this way it's a reasonable interpretation and that's why you have a dissent saying we don't i don't think it's a reasonable interpretation so the point is it you are bound by chevron deference in this case absolutely and if you look at the board's decision in a gore and it's clear on page five eighty two of the board's decision it says paragraph two a final decision it says in unequivocal terms we have the term and that respondents adjustment of status can me at it an admission for purposes of two thirty seven a one h in two thousand to the respondent a just a status as the wife of a u s citizen and was issued a permanent resident card reflecting that she was eligible to receive an immigrant visa and had one immediately available to her when she fall for this benefit accordingly would she was in possession of a document a permanent resident card that is equivalent to an immigrant visa a shoe talking about had the adjustment of status and cured the fraud correct it was a false marriage it was a fake marriage to get adjustment of status correct ok then qualifying family member at the time of the admission was obtained for our ok was in the possession of the visa or or the equivalent we can come back to that image and was otherwise at miscible it seems to me that this one is you can't read the criteria to go back to it is otherwise it miserable in two thousand  but you can't go back to otherwise admissible to say well as the legal permanent resident that's the fraudulent thing that's a number one that needs one do you say to me you're have the same thing don't let me explain to your wife why five has it's got was of a mistake why five is different you could have a situation this happens all the time in immigration court you have a client let's say for example who enters into a fraudulent marriage and also was convicted of a crime they grant the person and that crime would have in and of itself would have rendered that person inadmissible ineligible for residency immigration later discovers that was a fake exactly my earlier question which is on sept five are you interpreting otherwise admissible to mean not inadmissible correct he was no other there was no other ground of inadmissibility that applied to him he was solely inadmissible please the court generally on behalf of the respondent the attorney general of the united states the court should uphold the board's two thousand and seventeen decisions and find that it did not abuse its discretion in denying petitioner second an untimely motion to reopen as well as his motion for reconsideration this case has a whale sized red herring which is a two thirty seven a one h waiver that is not what is most important about resolving this case what is most important is the d w p the voluntary i'm sorry visa waiver program which is the program that petitioner used to enter the united states mr gomes cannot show that he was prejudiced by his prior tourney's conduct because he was never eligible to adjust having internet under the visa waiver program excited for the limited exceptions that council discussed over twenty two million people entered into the united states under the visa waiver program what this program does is the united states waives the requirement of a person to get a nonimmigrant visa and in return the person has to waive rights to immigration benefits for most immigration benefits despite having specifically waived immigration benefits mr gomez claims that he should be put into a better position than the hundreds of millions of people who entered the united states under the visa waiver program because he committed fraud against the united states government going back to the two three seventy when h i'll ask whatever you think of that policy argument doesn't the statute establish a waiver for some category of people who have engaged in fraud that is however it is not used by people it is used for things like marriage fraud and by fraud in the sense that a person will come in as an unmarried when they're actually married son or daughter of a u s c but in those cases they did not enter under the visa waiver program is that where do you see that restriction the statute if you look at eight u s c eleven eighty seven which is the visa waiver program and the waive of rights there is no exception for fraud there's no exception that you can somehow get benefits under this program because you were lucky enough to get a fraudulent birth certificate fool the government why are we setting aside his type of fraud and a lot of other types of fraud that's not why i'm quite following you are you saying that this provision could never apply to anyone admittedly under the visa waiver program ever that is what the agency found in this case were right but what are you saying that is what i am saying as well i did some research and i found only one case where a person entered under the visa waiver program and did seek this waiver but that was denied as a matter of discretion which is the next step after eligibility so i don't know why the immigration judge went that far sometimes immigration courts will go to discretion because that is a stronger way to deny a case turning to the two thirty seven when each waiver saying that i will also add to that whether you just missed status as an admission or not that doesn't matter petitioner is putting the cart before the horse he has to show that he has an immigrant visa question because it seems that in radar determined that the visa that the woman received on account of fraud did satisfy the requirement here sorry i do not follow that question it seems like a gore answers that difference is that the alien in a gore did not come in under the visa waiver program where would have been impossible that that's a different that's a different question than whether she had whether the granting of her  due to fraud counted as having a document that's required your answer your answer the question earlier stop rather than at that stop right i believe so i'm not exactly in the main difference is that petitioner entered under the visa waiver program so if he did not enter under the visa waiver program then he would be eligible crim for the two thirty seven age when they want each waiver but that's not what we have here where we're just keeping steps in this case he should never have adjusted he should never have gotten to the point where he can seek i guess this waiver and the only reason why he is able to do that is because he committed a fraud and a crime against a united states government the reason why the the so waiver program still applies to mr gomez is because he entered into the program his lawful permanent resident status terminated when the immigration judge terminated his status and that decision became final when the border firmed in two thousand and six and then again the only reason why he became an hoa p r was because he committed fraud against the united states government want to go back to the question of chevron deference and the matter of aig or if you can help me with that one term there is at the time of such admission what does that actually mean has a statute provide a plain meaning answer that refers to the time of the fraudulent admission and if the answer is no do i give chevron d sense that an admission that an adjustment status can qualify as an admission i think one problem with that argument is that your saying that the reason he doesn't qualify under two thirty seven is that at the time of his real admission he was on the visa waiver program and therefore he is excluded from all these rights is that correct is shorter but if that's the case then are you arguing that the determined mission has a different meaning than what the n r a board decision is suggesting and mission could mean and that may be very true but it's hard to argue that we that statute is not clear and also that it clearly means that his time of the mission must have been when he first entered the country rather than when he adjusted his status but but regardless mr gomez's position is that i mean committed fraud against the united states government he is entitled to more rights and if this case is to go back there is really no light at the end of the tunnel he entered into the visa waiver program his l p r status was terminated he is not eligible for any rights and at first the serious reason if he was able to establish eligibility for this waiver he would somehow have to overcome the negative discretionary aspect that he committed fraud against united states government and was convicted of that crime you go to the visa waiver program section eleven eighty seven and tell me which provisions you're relying on for the waiver i'm not sure on what has a subsection on wires that the only one yes your honor eleven eighty seven alien may not be provided a waiver under the program unless the alien has waived any right to contest other than on the basis of an application for asylum in the action for middle of the alien and under the regulations the department of yes right she contests which is number two to contest other than on the basis of an application for asylum and any action for removal of the alien leave let's say that he that mr gomez really were from cuba and so he had gotten his his adjustment through entirely correct means could he w still be limited by the terms of his initial entry into the united states or does that status change i expect impact his ability in other respects so if he was really cuban and he came in under the fisa waiver program then he would i guess fall under the exception the limited exception that allows people who enter under this program she w just right so is your position that because he obtained his adjustment of status fortunately he is entirely his rights are now entirely based on his original form of entry rather than on that adjustment of status that is correct your honor and again that adjustment of status is no longer there because it was terminated and that order was final and ok how that works so then that leaves you just with the waiver of rights position but he can't contest his remove ability because he came and under that program for a charter or you're just standing on the threshold issue meaning that he entered into a visa waiver program he was never eligible for that immigrant visa april two thousand and sixteen they said on administrative record one seventy eight last paragraph in the middle ok and and matter of a court and you contend that has nothing to do with this case are you saying he doesn't comply as well i'm saying that the board did not that it was not that the government is not relying on that for the basis of the reason why the agency a motion to reconsider this building on top of the early decision in the last paragraph administrator record three last paragraph three it said the motion makes the argument that there is one it was admitted in quotes and then the next word is but meaning the admission is not important and then it was raised again and the ineffective assistance of counsel based motion to reopen and then again it was raised in the motion to reconsider and you're arguing that the text of the responses indicate that that decision actually was considered even though it wasn't explicitly cited yes your honor i don't even have one more question and they said i was in possession of an immigrant visa or or the equivalent or you're also saying that's the fourth prong he was never in possession of an immigrant visa that's correct and it would have been him he was the me please the court and that's exactly where i was going the visa waiver program is the red herring this is the red herring the government's using to try to prove preclude my client from seeking the waiver there's no it has nothing to do with the visa waiver program there's nothing in the statute that precludes someone who would just get status fraudulently after having entered on the visa waiver program by seeking this waiver there adding requirements i don't exist in the law the visa waiver program the limits on that program apply to someone who still a visa waiver entrant who never subsequently became a resident so for example a person comes in on the visa waiver overstayers or time the government picks them up that person has no right to earn who hearing their visa waiver overstay except for asylum if they haven't gotten picked up that person can marry a citizen and apply for residency or go through a cuban adjustment it would be no different as judge grant ask what if you had come in  the visa waiver program and adjusted through a fake marriage would he be illegal for the waiver of course he would it happens all the time and there's a reason why there isn't any decision holding that someone who comes in on a visa waiver can't do it two or three seventy one age because there is no such law doesn't exist they're making stuff up they are making stuff up the law is not on their side the facts are on their side so they throw out the red herring he came in on a visa waiver he's a resident like any other resident the fact that he procured through a false birth certificate that's cuban is no different how do you procure to through a fake marriage was in some other fraud it doesn't distinguish between types of fraud that you can and can't apply for the waiver for it doesn't distinguish for how you entered a gore is clear you would if you would just add this that is the equivalent document the problem is the record is such a mess a board never actually looked at what took place and in the board decision denying the motion to reopen based out of ineffective assistance of counsel it held that someone who comes in a visa waiver can't adjust status under the cuban adjustment act and then when i filed a motion to reconsider pointing out wait a second yes it does and here's the law they changed their theory as to why now he was an elder for the waiver what do you think about the contention that the that and ray who actually was considered addressed it was considered in a different context it was considered your honor from the contacts that he was still if you use that waiver entrance he wasn't he was a resident he was a resident once he becomes a resident that's it he's no longer the visa waiver he is a permanent resident and if we're not going to start creating a permanent resident game on a visa waiver differently as you would ask than a perm resident came on a visa you've got a major major equal protection issue there you can't be treating residents differently based upon how the initial the enter the united states they either residence or they're not help what that would mean is just get a fraudulent adjustment of status and then you can get a waiver and all the requirements of the waiver otherwise admissible an immigrant  the marriage and that kind of business tell me how he meets it's not that he can go out and five it's not that he can get a waiver he can seek a way for he can seek a waiver before the judge and the judge after she whether the waiver was available to someone that's a whole and that was the result issue that a good result whether someone who are just that status and became a resident here albeit through four year old means was eligible to seek the waiver or only people who entered with a residency with immigrant visas were eligible and al gore said both classes of people both classes of residents those who enter with immigrant visas and those who are just that are eligible he he scrambled didn't have a had been in possession of an immigrant visa because that's how you know that's not how he came your honor it came with a visitor's visa not an immigrant visa came with a nonimmigrant visa not an immigrant visa are you saying that the the adjustment of status is what gave him the equivalent of an immigrant success so eisley what a gore hold on page five eighty two paragraph two and i as i understand it the just the only distinction that the government has drawn between a car and gomez is that gomez initially came in under the other program absolutely correct which is no distinction because it's a distinction that they have created to foreclose relief that's not we're going to take a ten minute break