what that will hear argue in the first case garcia garcia versus m in front of the court however they all sort of dovetail into that all seem to fold into the issue of whether the eleven sixty eight to any application and its operative effect in this particular case where you have a deportable but is going to believe is the standard of review which i think collapses into the very issue at hand terms of the substantive issue a second issue being defect of the statute and then in addition alternative arguments as to the whether the construction is ultra virus or there is a due process violation as a result of the construction as between an adjustment under twelve fifty five a under the old act and the celeb and sixty saw applications to the standard of review so let me jump ahead if you don't mind one of the cases that seems to have a lot of impact here is the president requests tell me why that doesn't preclude most of your then subsequently he is charged after the automatic adjustment to so called automatic adjustment under the spec sauce statute he's charged with remove ability based on his distinguishes it immediately from the situation of parazit re case now if there is an admission he would be admissible whether there was a firearm offense before or after the temporary residency so it doesn't have the same residency status first we have the statute that says you terminate the status based on the whether or not he's deported what you make a finding is deportable then ok that's the end of it  but also could not adjust status under the statute now mr garcia's situation he's got a conviction that does not are that doesn't bar that and it's your two ways of looking at it would be number one there's a built in waiver to the statute by operation of the second of the adjustment under the b section where you get to the permanent residency because it's not numerically precluded it's not a felony and it is not a inadmissible offense or there's no allegation of fraud either so without those first those fourth one of those four operative factors he would automatically would be entitled to the adjustment anyway the same operation now there's either guilt and waiver or else the whole the whole idea of a portable but not excludable inadmissible offense in other words is just completely not contemplated by statute that's not inconsistent  to lawful permanent residence without further inquiry into it and then to admit him in admissibility here's the language the government may institute removal proceedings against the alien but the government must do so on the on the premise that the alien lawful permanent resident rather than that the alien is inadmissible so how do you cope with that language the government may institute removal proceedings against the alien the difference for in this particular case is that he doesn't have i'm probably going to repeat myself a little bit by i mean hasn't paris and rigorous as you can institute you can start removal proceedings against your client you just have to grant that client additional protections because he's a lawful permanent resident under the construction of the statute and the nature of this particular offense he just went under the b section has to have some effect i mean it statute with this kind of offense which is an excludable not an excludable offense as in paris and re case there either has to be a terminations of the temporary are residency or he goes right through he's not even affected by that second portion of the statu that's going to get caught in the window even if they chose to exercise their gatekeeper functions which they did at the time of admission is the time of the granting of the temporary status not permanent status under saw according to the present r that's true but the problem is i guess this is a very unique kind of conviction this is probably the only remaining conviction classification that is both simply deportable not excluded so he's never been it may in admissible no matter when he's convicted of it and it's not inconsistent with other statutes number one it's not inconsistent with a twelve fifty five hold statute of adjustment where this would never even be an issue the classic example would have been drunk driving back when it was an aggravated felony but this was the only remaining conviction that i aware of firearms offense simply allows for adjustment no matter what you don't need a waiver you don't need anything it goes right through to be considered the time of the adjustment so in other words if he was convicted before the temporary residency it wouldn't matter if he was convicted unless he had additional qualifying convictions he's convicted in between it doesn't matter if he is convicted after then he would have a problem in other words going through the system this is one kind of conviction that doesn't get caught in the net everything else could be caught in the net could have been acted on purposefully by the attorney general as they phrase it although i would say it's more a question of discretion rather than permissiveness and because of that this is not an  your honor good morning terry scattered for the respond and the central question before the court is whether garcia is insulated from the immigration consequences of his firearms conviction which clearly  from later remove all proceedings if he commits a crime within the united states depending on his circumstances he may be eligible for relief from removal but certainly the charge can go forward  is that initial adjustment when the inspection takes place and argue in that case i was a minister ariel i just never had real significance we did argue that and again we lost on that issue i honestly i can't answer for the government's arguments imprisoned rica's i in reviewing the case time i question why we did raise those arguments but it's very clear under the law of this court and under an unbroken chain of us certainly there is a mechanism for terminating the temporary residence status but as this court's recognized as the board recognize a matter of war as that's a permissive skeen the question here is what would say that mr garcia's arguments go to the question of whether he's eligible for relief from removal and we would agree it's out of law with a firearms conviction in the aliens not inadmissible to the united states and therefore in the context of remove all proceedings potentially he could he could apply for adjustment of status that's in this particular case apparently mr garcia didn't have a basis for adjusting status after he was placed in removal proceedings but that doesn't and that's really you know that's a case specific scenario here what's your inevitably have to involve a repay praying process well the relief he's requesting is terminations of his proceedings and i don't believe that his next argument is that yes he should have been placed in to allow the b o h to consider the argument of enter should exercise discretion well your honor i asked has had an opportunity to exercise that discretion but moreover repa would not help mr garcia he's argued that he would have been suspension eligible but that's not the case because under the court's decision in ram his conviction for firearms offense three years after his admission is a temporary resident would have cut off his physical presence time in the united states he couldn't show the seven years and he certainly couldn't show the the years necessary for cancellation or remov all i'd like to address his point that he is adjustment to permanent resident i'm sure the softer vision is meaningless if under the government's reading of the statute and your honor that's not true as the court pointed out in prison rica's there is there are consequences to the adjustment because individuals in mr garcia's position are treated as permanent residents in c because there is no corresponding ground of inadmissibility so that form of relief was knocked out if he were in a different position in terms of his years of residency here or potentially he could have applied for cancellation if you were in removal proceedings of course as a permanent resident there are different due process implications to permanent residence status so it's not in meaningless adjustment but the question here is not his eligibility for relief from removal it is whether the deportation charges themselves can go forward and every stall case that the parties have cited support the conclusion that an alien who commits a deplorable firearms offense after being granted temporary residence under saw may be placed in proceedings and the automatic adjustment to permanent residence doesn't insulate him from the removal proceeding which are best explanation of the rational basis of the difference between the deportation exclusion provisions in th protection yeah ok let me address that briefly first i just want to note that these aliens are not similarly situated because they're under different statutory provisions there is a rational basis for treating them differently because under saw the inspection occurs at the time of adjustment to temporary resident and not at the time of adjustment to permanent residence so if you're going to compare the two schemes the general adjustment and the song adjustment he should be comparing the temporary adjustment understocked to l p r adjustment under two forty five that is the appropriate point of comparison and in that instance the aliens are treated the same and further both categories of aliens are eligible for the same relief from removal we're talking about whether they can be placed in the deportation proceeding so i'm not sure i understand your argument him in terms of whether he can follow that though because that depends on the operation of the stuff time that's correct the papering was intended to undo the stop time with rip people who respect the people who are disadvantaged by it  rematch here particularly since our position is still that there is no mention every papering in the record of this case is not contradictory to your supposition there might have been discussions about it  there was nothing in the record here i don't know whether there was consideration of it outside of the context of the removal proceeding itself really when he's talking about suspension it's difficult to move conceive start just briefly the going through the real potentially leave here on a bench or a type of human futility underscored in this underscored in this case because he's adjusted status now he's being asked to readjust certainly he can the gun isn't a bar but that goes into underscore the exclusion of speech meet the exclusion of the portability under this particular statute as a bar secondly going you think t he's a twelve fifty four eight two at this point in history which is a ten years from the date of the removeable offense so even if the government prevailed on his argument that this wasn't winnowed wasn't didn't just away under the eleven sixty still got ten years running time from there and he will be entitled to apply for a suspension under the old statute since he is in fact in deportation so i can only wonder gabrielle see i don't even have to go to gabrielle city at this point any readjustments that he might be available vailable to him he certainly would be entitled to take advantage of this point so there are those forms of relief out there but again without waiving the argument that that would be underscoring the whole problem of futility the futility doctrine as applies to the statute is would be appropriate here under the circumstances i find it passing strange the pair of that will subscribe very significant health and safety code violation is entitled really funder this particular statute but where is this illegal firearm in an unlawful manner results and or rather egregious result but that's neither here nor there it's just an observation finally there's a seek to waiver which underscores the exclude ability issue under the eleven sixty statute it addresses only it if you specifically says that excludable conviction convicted aliens aren't entitled to a waiver but it doesn't say anything about the portable aliens again underscoring the fact that this kind of conviction wasn't even contemplated by congress going through this particular procedure and i've finally it's not he's not inconsistent with the other forms of adjustment that exist under the i a e a at that time including the marriage fraud act which is incremental and i would submit that where this offense is not one that's contemplated by congress going through this particular winnowing process if you will of the under the eleven sixty statute  certainly would it's not inconsistent with these other forms of you know incremental adjustments that need all steps need to be completed before you're a lawful permanent resident under these circumstances as opposed to excludable alien i believe my time's up i'm not sure an attempt to repay peru in this case that we don't know about there was not at the time there was i just can't remember your honor it was quite some time ago i don't know in the record there's nothing i've gone back through the record to look for that been moved to thursday and the next based on the oral argument calenders united states versus wall