the next case on our calendar is versus sessions sixteen thirty three seventeen immigration judge found that he could not do to keep the i and a section to twelve h waiver without also concurrently adjudicating the application for adjustment to controlling statute and regulation do not use the phrase concurrently adjudicated they only ever reference concurrently filed as does matter of us the immigration judge relied solely on matter of us in reaching his decision the petitioner in that case did not have a pathway to status nor did he have an immediately available bs that as m that should be considered when you can considering whether to grant administrative closure those factors or not dispositive and they are a balancing test in which all relevant factors should be considered here at the immigration judge took out the most important piece of the balancing test that being waiver application that was one of the biggest equities that would have weighed in his favor when considering the administrative closure argument by not educating that waiver and instead only picking certain factors to consider in the spelling test balancing test rather than all relevant they also added two additional factors that we found to be legally burdensome to be i also considered whether or not mr baldwin i could identify a specific point in the future when he would be premature challengeable and they also considered his eligibility or rather his chances of success on certain applications outside of this agency and why shouldn't they have i mean i'm looking at this from the vantage point of someone who's been a district judge and people have asked me for continuances and you have to decide are we going to let this case go forward to what would seem to be an inevitable result or are we going to give suspend proceedings to give the one of the parties an opportunity to do something that might change the result that might be equitable that's really the posture we're in right yes your honor and it seems to me it's one thing if the party is saying well look within a reasonably short period of time something is going to happen that will radically change the equities and change the law and i'm going to now no longer be suffering this detriment but you know so you should let me do that and in this case looking at your exhibit exhibit three  the appendix the process to get what it's normally ingenious of you and your colleagues have even figured this out we've got a sixteen step procedure several of the steps of which are as the v a pointed out not necessarily all that likely to happen there's no timeline as to how long it's going to take except that we know at least it's going to take a couple of years before he's even out of jail and able to pursue some of these things why on earth would a judge think that it is appropriate to grant a continuance with respect to someone who is clearly removeable now against this highly contingent long term possibility that something might change at some indefinite point in the future if a lot of things go right to him for him in this sixteen step process your honor we do recognize that this is a very unconventional relevant factors that they would like to in the oddities in test but we're looking for some fairness and consistency in the application of these factors for there to be a full balancing test that and doesn't clued in fact all relevant factors and for mr boehner that would include this way propagation that was honor we're not asking you to educate mr bubbliness applications or to make a decision on the administrate of closure what we're looking for here is for this to be our mantra to the immigration judge with instructions to adjudicate the way up or to tell him that he doesn't fact have the discretion to do to ability is it your position that he was constitutionally required to hold a hearing on the waiver application yes your honor that was part of argument institutional law and notwithstanding the length and the speculative nature and this question of the elements of the that hypothetical possibility yes your honor petitioner contends that although it is possible that the judge reached a decision that is not in his favor that the waiver should have been adjudicated on the merits he did present witnesses that day that were available to testify he had evidence prepared for the immigration judge and none of this was considered in the adjudication of the waiver application because the immigration judge found that he could not adjudicated in the constitutional claim is that just due and sixteen mr baldwin i had a master calendar hearing with the immigration judge and at that point the judge told him ok so yes he does need the six zero one he'd still be eligible for adjustment with the approved on one thirty he just needs a waiver that's found in the record at pages two eighty one to two eighty two on that day we did submit the waiver application along with the application for adjustment and it was at the following hearing that the individual swiss scheduled and then subsequently on april twelfth we came before the judge for those five i which at that point we were aware of and it was not part of the consideration so what mr bell going to is looking for here is for the agency to follow the rules that's created for the average t z unbalancing factors to be weighed at quickly for all relevant factors to what rule exactly did the agency not follow in the matter of gravity and balancing test by only picking factors that essentially showed the speculative ness of the pathway and not considering also the equities that when mr b stever in the evidence presented to the court so your honour's we would ask that this court remand this with instructions for the six zero one waiver to be adjudicated and for the advertising and factors to be applied with the consideration of that waiver application thank show prejudice because there's no likelihood of success based on his criminal conviction for a violent crime in terms of whether the i j a actually had the authority to adjudicate if you read matter of rebus there asking for an extremely narrow a literal interpretation and if i may just read from the board's decision by amending the statute congress intended to require illions of removal proceedings in the united states to apply for adjustment in conjunction with a section two of h waiver be eligible for adjustment of status at the time and that those individually came to together and brief as has been adopted by the six the seventh and the eleventh circuit so we would argue that that's controlling that there is no substantial distinction between a nonpartizan waiver and concurrently filed applications where one is placed in a bands and there's administrative closure for any length of years and then the two twelve age there's no meaningful distinction there but again  think the linchpin for them is the administrative closure issue and that was a discretionary determination that is not reviewable because of the criminal alien bar which they have not addressed thank you very much thank  review of questions of long constitutional claims which we have raised here the other reason that we asked for the adjudication of this waivers for justice this is extremely important to the as a very large u s citizen family in this country including his wife and four children although the petitioner does agree that this is a difficult pathway that it may not be one that weighs in his favor the education on the merits is very meaningful to him and it means that he does have a chance of remaining in this country that he's been in since he was a minor lastly rebus does not say concurrently adjudicated as the government also agree is nowhere in the statute or regulation does it say concurrently adjudicated every waiver is discretionary and