oh my heart versus the united states attorney general petition is not yet approved in and of itself is not a basis to deny an exercise of discretion and that is what occurred here in this case the board of immigration appeals when there was a visa petition then because they said a visa petition was not immediately available if an immigrant visa was not immediately available in fact an immigrant visa it was immediately available because the petitioner was the  but there was a visa immediately available because the because when a when is child over twenty one dollars petitions for their parent there's no there's no while white it's immediate relative so there's a nd set of citizen parent purchasing for a child over twenty one there is dizziness america limitation immediate relatives are subject to that because this was this was her son and she was an immediate relative and approval of the of the petition would interview them the small letter number two b which does say flatly on its face the attorney general may have just the status of an alien if an immigrant visa is immediately available to the alien that this time and so you're saying that doesn't mean that it's been determined yet it just means that it meets that three fold standard that the that's correct and that's what the court said impose the same situation and  versus sign as there was an unapproved i want thirty petition by the by the petitioners wife but the whole did not involve this kind of timing issue where the the current the current petition would be untimely unless it's grandfathered right that's that's correct but that's it that's an issue for the immigration judge on the application when it wants applications sent back to to determine and so we can so your point would be if all of this had actually been fleshed out by the immigration judge rather than just saying we're not going to we're going to we're going to deny the application there is a motion that or there's an application that still pending then that might have been ok but the problem here is the one that's involved because the immigration judge did not actually set forth any reasoning instead immigration judge said the fact that the petition for an immigrant visa had not yet been approved at the time are i'm sorry that that was the problem that that that even go into that because that's why they needed to send it back to the immigration judge to make an initial determination on the application for justice status because this case that wasn't before the immigration judge in the st place it was a different it was a different application it was a cancellation of removal application killer we're not we're not talking about that here we're just talking about the narrow reason why the board said we're not sending this  now standing alone would not be timely so the previous petition was filed on the last day that it was permissible and then it was ultimately withdrawn that is that the government's brief says that it was not on the basis that marriage was a bona fide but i didn't read it that way am i right that that petition earlier would was or was simply withdrawn i am i think there is a denial instance in the st place which is exactly the same thing that happened in all jolly analogy in bull he had committed a crime which made him ineligible for a just in the status bub but there was a waiver available so again the case had to go back to the immigration judge to make an initial determination on whether you know whether he was actually eligible for just on the status and that hasn't happened here and the cases that  thank you thank you the proceedings that lasted from october two thousand and four to two thousand and nine that they failed to show a bona fide marriage after looking at evidence after notice of intent and i after interviews is due to kate on the merits and denied for lack of bona fide marriage to let me because the grandfathering provision is more for someone who is to preserve their party day on april th two thousand and one but for some reason later on there's been a breakdown in the relationship but there was a bona fide marriage much inception and so you don't get a nd chance to prove the bona fides of that marriage after an initial education on the merits and go through examples in that case the st being a bona fide marriage broke down because of a divorce or a labor petition that was based on a business that was providing a job at the time the later goes out of business so these are valid name sachin however later on to circumstances outside the petitioners control they break down so the grandfather provision preserves that status for those types testimony that was a letter from her ex husband nigel hart and nigel hart claims that this was a bona fide marriage he's still in love with his ex wife and that he'd marry her all over again but this does not go to attorney test excluded mr howard's the father and after that that started this ball rolling on no bonafide marriage but also the age he also found there was really no evidence of a shared life together so even after three years of marriage they submitted hardly anything showing they live testimony for the immigration judge claimed they lived together up until two thousand and ten approximately when they got divorced and so you'd expect that she's going to rehabilitate this bona fide marriage throughout that long period of eight years of marriage there made on that i mean they didn't make the grandfathering decision what they said was the immigration visa is not immediately available to her sense of ease a petition filed by her son remain standing i mean that's the in and that conflicts with with ball with our president i mean i'll ask you the same thing i ask your brother i mean is there any development on the law on reopening these cases that that has reasoning it again was someone you know i guess i would say they did fully explain their reason because they said you know this is not immediately available the board's ultimate correct in saying this pending visitation is not likely to change the outcome proceedings because under both you have to prove problem is we can't really review it we don't know what the we can't tell what the basis for the decision was so why shouldn't we send it back and say tell us what your thinking on this was that the government acknowledges that and that so going back to us last i faced with a similar predicament where there's so much trying to rehabilitate of these and the board doesn't simply state you're not a beneficiary views of that further explanation the government made arguments as we did here explaining what the board why they reached this conclusion and the st circuit notes that in another context this might be prohibited by cherry however because it's a motion to reopen under the abuse of discretion standard which is a much broader standard with the board's entirely within its discretion to grant or deny the motion or decision has to be arbitrary capricious they entertain the government's arguments in that case and they found it did support the board's decision that was not likely to change the outcome it occurs to me that even your heart might not be fully in the of appeals judges can make up their own reasons for why the board of immigration appeals did what they did perhaps but i think in this case it's just you also look at the filings before the board sisters not cited that or rewrite not cited matter but it's just simply stated i'm grandfathered there was never much argument made to the board simply just a and it still isn't just a bald assertion that she can grandfather up this previously denied these it's never been explained and so when the board's faced with that simply states you've shown us nothing that would change the outcome proceeding in this case i just want to penalize further questions for now thank you very much  just to respond to on a couple of points the st thing the board of immigration appeals and talk about there were case in all of the cases that the government sites they they also the all say position was meritorious in fact in the government wants to try to cloud this and throw this situation and say oh well there was a denial of the visa petition you know back back in the original lisa petition and this is this is a quote from the board the respondent has not shown that she's eligible for just one status because there is no indication of the beat immigrant visa is immediately available to her since her visa petition filed by her son remains pending petitions and that's not the case here so it was a clear mistake legal mistake by the board which which which needs to get sent back but in all the again and all these other cases where the guns tries to cite well there was a in front of an immigration judge so so any any decision by the a decision by a u s c i s is always going to be reviewable or you have the right to renew you your application for adjustment status in front of immigration judge and then an immigration judge makes a new makes a new determination as to whether you know as to whether the this person was in this case whether a person was grandfather or not in those cases in the cases that they cite that had already been done now and that's distinction or say was grandfathered or not is that a timing question or is that the quote grandfathering depends on this immigration judge should decide focused on that question not on the question of the media availability right absolutely but again this is a new petition this was a decision a new case that something you know her