we have for today gallup more versus attorney general number zero eight ash thirty three seventy nine mr brush and mis  on july ninth two thousand and eight the b i affirmed the judge's order of removal however it did not rush to rely on the immigration judges analysis of the case essential either be i made a legal conclusion that mr the statue of limitations argument was that raised before the b i a i don't believe it was john or no at the so how can we review it i'm really i'm not making a charged by the notice to appear that the department of homeland security filed and two thousand and six that he had adjusted his status to that of a lawful permanent resident in one nine hundred ninety four and that he was convicted in one nine five he was not inadmissible for being the portable at the time of his adjustment of status based on a drug related conviction if there was  you say then we have to isn't there two things that need to be done only one of which we can do first there needs to be a determination that the event in september of one thousand nine hundred three didn't amount to a and arrest right so we know from the transcript for the i j a that it appears he had his miranda warnings he wasn't sure exactly what was going on  six of the transfer of suggests in the judgment and conviction that he spent or that he spent six days in jail of four of which were in september of ninety three so it would appear there's a question of law as to whether there's an arrest and then also with regard to one thousand nine hundred four there's a question of the conditional lawful permanent resident versus lawful permanent resident and whether those under the war are really a quibble and so those are two hurdles that have to be overcome and we can't resolve the question of whether there was an arrest  can't that's and that's something that should be resolved at an evidentiary hearing and that issue first came up in the brief that the office of immigration letter and litigation submitted to this court about his  detention at least for three or four days in september one nine hundred ninety three so that wasn't something that was brought up and immigration court during the of a dench area hearing there was an issue about definitely so in order for us to come to the determination that you want us to come to and that is that the conditional lawful permanent residence that is means something the question of whether an arrest occurred has to be resolved so in essence you're asking us to remember the case so that that issue can be resolved essential e because i don't the  stated something that to me seems legally in correct which is that mr gal more adjust adjusted his status in one nine hundred ninety six and really mr page three bottom of the second to last paragraph and i can read it because i think it really covers everything in a few sentences what they say to the opinion page sorry page three of the joint appendix preclude his nine hundred ninety six adjustment of status from being construed considered lawful within the meaning of former section two twelve c we did not decide this time whether at the time of his adjustment the respondent was also inadmissible for willfully misrepresenting ontario facts so they declined to decide whether or not he was inadmissible for willfully misrepresent misrepresenting a material fact because a be able leave that he had been convicted in one thousand nine hundred four therefore has he was already inadmissible because of the conviction in one nine hundred ninety six so they never go into that can i ask you question that you know obviously the cross your argument is that the b a a decided this on a basis that kind took everybody by surprise right under those circumstances are you required to to stay before the b iow you can ask that they reconsider their decision because we don't have anything to go on all we can do is i guess i guess that your best cases we remained i reconsider the decision at the time i was not the attorney of record before the b i a so if you practice for practical results it can be difficult to do that when you don't have an entire record within th you arguing there is no distinction no there's a distinction why is it important to go to rest well they're charging him as having the h s is as having lied about the arrest and i mean it could be sealed for the rest of the world but why would why would it be sealed as to him i can't answer that question really but according to what was presented before the immigration court it was sealed and i  the rest is relevant because if it but further rest he wouldn't have been charged as being inadmissible for for willfully misrepresenting himself therefore although he permanent residence after the arrest of before the conviction is that what you're saying yes so therefore he would be deportable still and we're not contesting that he's the portable for having committed a drug related offense and having been convicted have lied about his application but there is something the says subject to conditions he is a lawful permanent resident correct but there is a distinction between  lawfully admitted for purposes of two twelve c removal as being in compliance with substantial legal requirements that said the board in looking at the decision or looking at this particular case if you are a seem to me that what the board was thinking is that this person was not yet admittedly admitted procedurally admitted means that he was not required necessary to have i'm comply with a substantial legal requirements for his status that means that at the time that mr gowan or planned for adjustment of status under section two forty five the seek a status or two sixteen that said he was automatically granted lawful permanent resident status with subject to complying with the substantial legal requirements under the for that status at a later time well that time being when they remove the conditions of his status if you look at the statutes actually to sixteen under see under i think it's two thousand c three the attorney general actually makes a determination about the status ninety days prior to the expiration of the conditional status again as i said the status was granted conditionally subject to the provisions of two sixteen in the provisions of two sixteen says that the attorney general reviews a person's application ninety days prior to the expiration of that conditional their perspective that the the easy way out which is we have a ninety five and and the ninety five conviction will disqualify and that's the basis that they made the rule and that is correct it wasn't necessary to necessarily is what you're saying it to sixteen to sixteen says quote a conditional permanent resident is one who has been lawfully admitted for permanent residence and you're suggesting that he was not lawfully admitted well lawfully admit it means that it's that he was compliant with the substantial legal requirements at the time of his admission at the time he was granted the status in one thousand nine hundred four there was not a question about his substantial legal requirements because under two sixteen they are not required to be compliant in till they submit their person can actually be granted lawful permanent resident status but be granted that status on lawfully that means that although they were granted that status if you subsequently find at a later time that they weren't eligible for that's what i know that i know that but what  distinction of well there well if you again aliens who actually are married do not let's just say that if you agree with the premise that they were lovely a minute for permanent residence and that it was lawful at the you do not have to demonstrate that you lawfully qualify for that that is what happens is with under three sixteen you actually aren't demonstrating that you qualify for the status until later on and that's because because the status is based on a marriage you have to give the marriage time to right then and at that ripens a natural reading of the step that you would tell you that even though we're granting you this that is as it says on the two sixteen a one it is subject to the remaining provision lawfully admit it's kind of stated as being and compliant with the substantial legal requirements for this that under two sixteen there is no substantial compliance at the time you apply you're automatically granted it based on your derivative status as a spouse you can never in that status comply with tools no not never you're required to comply but the time of compliance occurs at the time you apply for the removal of the conditions if you read the national the natural conditional l p r and i hope your her and if i'm understanding you correctly one distinction is that as a conditional l p r when you are in that status you cannot comply with the lawful permanent resident status but in so it's a period of time we're going to expect you to comply with that status that requirement occurs ninety days prior to the expiration of the two years that that occur once you've been granted t status as permanent resident it is subject to demonstrating to the attorney general that the information that you place in your application was true and factual at the time that he requested to remove the conditions on his application so the fact of the matter wh had been convicted of controls that's a violation again i'm under to twelve say lawfully a minute for permanent residence it's based on your compliance with the substantial legal requirement you're not substantially legally required compliant at the because he's been found in this one and different ground at the time he was required to to be compliant with legal requirements for his status so even if if if under your perspective we misunderstand what's going on  permanent resident status she was later how to not have been lawfully admitted for purposes of two twelve c because at the time if she had received her lawful permanent residence that she was not legally compliant that if she had not arrived in the united states in until  can we give chevron deference to a b i a decision didn't even reach that conclusion didn't even acknowledge the gollum or had been admitted as a conditional permanent resident ninety four there's no analysis whatsoever is just a sentence of the conclusion that he was there trying to findings that necessary to their decision i made was it necessary for him to find out because like i said on a natural plain reading is a statute which mr ghanem was compliance with the legal requirements for his status was required at the time he went instance now because i think this court can can read that same determination from a plain reading of the statute again like i said there wouldn't be any basis for having section two sixteen if you could automatically have the same type of lawful permanent resident status  suggesting by stating that you know the removal of conditions is not significant i mean that status was based on them having to submit the petition the very system at that petition requires that his status terminate anyway so that said it's a temporary  was you know quarter by surprise like maybe this case that should should your adversary be required to to file a motion for reconsideration so the be i can decide in the first instance that would have been reasonable at the time right now it's not required i mean i want to rule it out but i mean in order to give us a clean record that we can decide on i mean it's his failure to make a decision on a willful misrepresentation apps that doesn't have any bearing on the fact that he still considered lawful not lawfully admitted lawfully admitted by the courts as well as the board has been defined by substantial legal requirements when he filed for his status and he was granted it there was no requirements he was actually moved from section two forty five i have a couple of points the order of removal by the v i i was final so petition for review could have been filed within thirty days after the final order remov were not required to file a motion to for the be i e to reconsider its decision because that order is final even while the motion to reconsider its pending and the person eliane can be removed during the pendency of a motion to reconsider so there would be no recourse for the alien for review of the v a s the situation either by itself or by the third circuit because the deadlines would be missed so on and so forth so that's just answer your question because you brought it up it's my understanding that it's pretty clear that mr gale moore was admitted as a lawful permanent resident in one nine hundred ninety four that's  the department of homeland security would have been precluded from initiating removal proceedings under this court's precedent because there is a five year statute of limitations that was not briefed in the b i a brief because that was not an issue before the drug trafficking offense so there is no room in the if you look at the charges only the charge of and miss ability or league or goes towards the because there would be a there's a statute of limitations according to this court's precedent and one the government can be can research research and proceedings and that's where that would be a rescission proceeding because he would have been admitted after the fact of the conviction aggravated tones if the alien was admitted as a lawful permanent resident despite the convictions and the government does a move to rescind the convictions that doesn't remove to basis and that the petition to remove the conditional basis of the lawful permanent residence is not readmission it's just that it's a petition to remove the conditions and what the  citizenship and immigration services and the courts look at with that type of case where a petition to remove the conditions of the permanent residence is whether it is really doesn't go towards  towards the bona fides of the marriage so it's it's not a readmission it's just a petition to remove the conditions and i think it's so there is this thing yeah there is a distinction there has been actually the board recently published a case it has and if i could and it does talk about adjustment of status and admission and i think it's pretty clear and set law that  you can't get readmitted you can be admitted twice admitted once as a lawful permanent resident that the removal of the conditions is not readmission