counsel table i would like to reserve five minutes for a bottle i'd like to take the limited time we have today to focus on three important points st i want to start with a sort of broad strokes view of what happened here as i think it will help frame both the and constitutional claims i will then turn to our claim with respect to the regulation and close of the brief discussion of our due process claim so st broad strokes this court must reverse the district court because otherwise it would be sanctioning the off and in purporting to provide them with a summary of its contents misrepresented what was in the statement if u s c i asked had actually provided before the no statement to appellants as we submit the law requires the entire record in this case would have been different myriad ways in which that document lacked in detail of reliability it was not sworn it did not contain a date it did not have any information on who took the statement under what circumstances it contained some odd rhetoric and there are a host of other issues with the statement the statement had been produced certainly on or so i think several things one in his declaration he could have actually address the allegations against him head on he didn't know that he had been accused of making threats so he never said that he hadn't made them he didn't know that he was accused of stealing money and so he never addressed those threats and i think his declaration would have been more powerful i mean it was very detailed but it would have been more powerful if you'd actually address the accusations against him which he didn't know the document also contained corroborating information it discussed that they live together and discuss that they commingle finances he could have pointed that out that that supported his version of what happened and he could have actually made all of the arguments that i just made those aren't just for the district court he could have made those to the board and c i s pointing out that this document has a lot of issues with it and in fact if he had done so perhaps u s c s would have done the same thing that they did in district court which is go back to before you know and try and fix the problems with the statement by getting a new sworn statement from her but the problem with that sworn statement was or brought up other issues she had a different version of how long they had lived together she talked about the fact that she had actually gotten married to him because she thought it would allow her to spend more time with her son and not work which is a valid reason to get married and not immigration fraud so all of those things could have come up in the agency record he could have undermined and her credibility he could have addressed pacific things and perhaps if he had known the allegations against him he might have worked harder to find more corroborating evidence i mean there ten years had passed so as he explained in his declaration he was at a certain disadvantage because a lot of what he might have had was gone but had he known how serious the allegations were he might have worked harder to put more in the ruck so his declaration of the st one in any event really focused on attacking credibility with very very limited amount of information with respect to the validity  marriage so how would that have differed if he'd seen her statement i mean he was already attacking her credibility you're saying he would have denied some of her accusations but how does that get to the validity of the marriage well  the declaration did two things i think the declaration was very detailed about their marriage i mean he talked about how the marriage deteriorated get details of the dishwasher and you had a lot of details that showed that the marriage was valid it just wasn't a good marriage with respect to him attacking her credibility i think like that's exactly the problem he was put in a position where he was forced to say i mean we're what he chose to say was you know what he said that you thought maybe that she was intoxicated or that she wasn't trustworthy but what else was he supposed to say he had no idea what she had said or when she had said it or how she had said it he didn't even know there was a written statement well he knew that she had said that the marriage was not valid and so he would have been put on notice that wh he needed to do what he needed to persuade the agency that in fact it was a valid marriage well he was he was essentially given a version of events where she corroborated that they had agreed to marry essentially for money that's what the notice of intent to revoke made out right that he was interviewed he admitted to a fraudulent marriage they essentially called her and she corroborated up but that's not a good that's not what happened at all in fact she says she was duped that nine months after marrying that she figured out that it was a fraudulent marriage and to note she doesn't provide a single fact in support of that statement so all of the issues that were that were present in ching like make sense here right that she was potentially just an upset spouse because things didn't work out and now she's she's she's accusing him with no actual evidence i mean nothing in her statement was corroborated by anything else in the wreck well what you're addressing and i probably set you off on this because you had started out with broad strokes and i asked you a question that led you into a discussion of prejudice but really i think the st issue need to address is the language of the regulations or how that how that supports your position that the agency  certainly under so let me turn to the regulation so i think the plain language of the regulation is clear information contained in the record of proceeding must be disclosed to the applicant or petitioner that's what section two says there's nothing on there's nothing ambiguous about that both or agree and say that's clearly what the regulation means you must disclose the evidence and that makes sense it accords with the way that the regulation is formulate the overall structure of the regulation is as follows st the beginning says you shall be permitted to inspect the record i e you have a permissive ability to inspect the record if you ask but there are some exceptions the st exception subsection i imposes an affirmative obligation on c i s to disclose a start to advise with respect to derogatory information so all they have to do is advise you of the general nature of the information and give you a chance to rebut it the nd so under section one yes you're not arguing that they were required to produce information must be in the record of proceeding and it must be disclosed if the government's argument is correct that all disclosed means is that you have to essentially advise with a summary of the information then why are there two subsections it reads sub section two out of the regulation as does the seven circuits interpretation the only courts that have actually addressed the entire regulation and made sense of it are good for e and i care but good for a night night her certainly kafoury interprets section two in terms of allowing the petitioner an opportunity to rebut the evidence but that section doesn't address rebutting evidence that's only in section one so no you respond to that it seems to be an analytical air i don't think so your honor i think that it's clear that subsection two is about rebuttal i mean that's that's in a separate part of the regulation that it wasn't it doesn't say anything at all about rebuttal no but the it just describes what will be contained in the record certainly but but the point is this goes to statutory eligibility significant right as opposed to number one which is generally dealing with discretionary information and so the reason that they have to be given the information is so that they can rebut it but but this is also you must understand this within the context of the greater regulation and eight c f r one of three dollars so earlier along in the same regulation discusses that that's the purpose of an palance statements on persuasive and not make sense because they didn't have the information they needed to rebut they specifically addressed all of those arguments and briefing before the board pointing out why the agency had missed had mistaken and presumably the board found  lacked credibility based in part on inconsistent statements that he made including the statement that the former spouse never filed for a moment when a records search showed that you do well it would have potentially been your honor except that he provided explanation that he wasn't served and didn't know and that was apparently found persuasive by the board because the board made no credibility finding they did not find him not credible so they don't discuss that at all they simply say his attempts to attack her credibility were unpersuasive which makes sense because he didn't have the information so he made broad statements about the fact that she's untrustworthy which rang hollow head he had the actual evidence he could have made a much better robot but he didn't make broad state were really specific allegations about abusing alcohol and perhaps drugs mistreating her pet turtle lying being untrustworthy working as an exotic dancer you know on and on he had pages just attacking her was drunk at the time is speculative and unpersuasive and of course they did because he didn't have any proof of that but he had he actually been able to address what she said and point out that it was contradictory to what he supposedly admitted to his rebuttal would have been much more persuasive i mean there are a lot of issues with that statement i mean i had no information as to who took the statement it was completely devoid of the immigration agents it wasn't clear whether she wrote it or whether she had orally told it to someone it wasn't clear when they did it  were not to my knowledge but it's not clear why he would have attempted to do that given that he had in his view they had essentially immigration agents had called her on the phone and said you know roman admitted  the fact that you two agree to a fraudulent marriage and she corroborated that period done but that's not what happened at all and that's not even close to what she said but they didn't you cited another case i think of chang but in that case all you had was all the admission he vehemently denies and he has a reasonable explanation for that he explained not that the marriage was fraud at the inception which is the only thing that matters just that it wasn't bona fide at the time that he did it that it had broken down so and inching they were given the information that the x files had said here not only were they not given the information they weren't even told that a statement exist so it's actually much worse than shit so if if we were to just hypothetically if we did not agree with your  reading the regulations and in fact agreed with the th circuit in cali as to how the regulation should be perceived it seems that what you're left with is your due process argument which seems to be the th ust of your your argument so there are some issues with your due process claims in that it appears you waived two of the three that you make now certainly are so we don't believe that they were waived we think st of all as a matter of fact they're clearly presented if you look at number twelve his st amended complaint he clearly makes the due process claim in both paragraphs i believe thirty five dollars forty seven cents and then in his motion for summary judgment on page twenty presented especially when viewed liberally as notice pleading should and in addition as we argued in our briefing we think the supreme court case in the brand makes clear that the claim was preserved and that even if you disagree with our representation of the record which i think is pretty clear produced that that this is just a slightly different argument and that you are allowed to raise new arguments on appeal if you know that ok thank you good morning may please the court has happened to be the department of justice representing the government in this case there are two major points i'd like to discuss this morning with the court the st regard to due process claim as a national matter as the court raised the wavier some of the arguments for guarded process claim is significant in this case and i think that narrows down the issues that should resolve some of the issues the only thing that we should be discussing the that the government position is is before the court is the buffel in a statement the cross examination and the unreactive report from the investigators is not something that should be part of the due process of consideration for the court today and the argument was not r officially before the trial court that's the argument regarding the the underdark that statement by the officers and the cross examination this is not a pure question of law as a kid said to in the bronx which the issue there was whethe it was it whether it's sort of the investigation i believe the investigation started when they st spoke to mr barsaat and he gave his initial admission i think that predated the statement so i think from that in that they may have found that there was a potential issue with marriage private they discussed in that date they have an interview with most of you know is that the agency's position they were under no obligation to provide the plaintiffs in this case with the whole discusses inspection of evidence it clearly states that in the regulation title and inspect it permits inspection of a record with four exceptions the one that's relevant to your question your honor is the nd the st exception i'm  sorry and that's where inspection is not required that's where there is drug tory information such as the buffalo you know statement that was unaware to the applicant for the petition which we assume is wrote is in this case in that regard the individual so we have to be that there was a written statement that's not it's not in the notice separate apart from what has actually spoken to no that's not in the know as we so let me make sure i have the sequence correct so so this goes up to the board of immigration appeals and in the appeal  the plaintiffs say look there's no there's nothing in the record except for this and then the board of immigration appeals as yes it is that there are statements in the record and we're going to give them white right corrector on so how does that satisfy the nd element of the regulation which says that if you're going to deny based on statutory and  disclosure is the process of making something known a revelation facts where production is the actual presentation of a particular exhibit so you think the administrative record in a k should be secret says me to be secret no your honor and i think i subsection two states exactly the opposite it does say that the record has to be sufficient enough in order to be able to establish the grounds for statutory knowledge ability  cia relied upon the statement that was correct me if i'm wrong relied upon a statement that was not available to the plaintiffs in this case at the time of the summary judgment proceedings district  th two thousand and thirteen so it looks like the st notice was april th two thousand and thirteen and it included a summary of the arrest report and it stated that the agents had contacted buffalo you know who had said that the  word inspection elsewhere within the section so by using the word disclosure they clearly indicating that there this was something different subsection two that they were out providing for let me ask a factual question and if you don't know the answer i at the time of the proceedings and district court was both fully know the available to be called as a witness i don't know that your honor all about the arresting officers or the need to give some weight to that actual qualifier again had they were barred the record position to be produced the language clearly would have said disclose the record proceeding so we have to give some weight or some discussion to information contained in i think that means if the agency was to disclose something less than full record and also the word evidence is lacking from the subsection we knew that the agency was able to use a knew what the word evidence meant uses outs where in this regulation it actually uses an eight c a four to a four two when it discusses the agency's determination of marriage fraud it says an epicure case when it discussing marriage fraud there's a requirement that evidence the word evidence is used be placed in the aliens file so we have here is distinguishing between the record sitting which i believe present counsel's assuming means the entire a file and that's not the case we're talking about a record of proceeding which is something other than a file and we're talking about something other than evidence which the agency clearly knew how to distinguish between those terms because they used them in different parts in support of argument again a clear reading of subsection two is that with regard to the information in the record the government  reliant on the state but in fact the b i a says well quote the petitioner claims that ms buffalo you know statement is not in the record and thus should not be considered the statement however is on the record and will be considered make a certain decision they need to have it based on a statutory basis they need to have a certain record to support it i think then maybe go to goes to a question of merits regarding that particular decision which would be reviewed under a p a standard and so i think that's kind of how i agree that subsection one does not require production they agree choir's a summary to be advised of the derogatory information and our prior case and his son follows that as well so the crux of this is the argument that subsection two when it says the decision has to be based on the information the record which is disclosed to the applicant does that mean disclosed in the sense that it was provided it was summarized to them it doesn't mean something less and that means just providing the information contained within the word and i think that was in fact done in this case and what supports that argument the language your honor that the definition of the word production the use of it correctly is there anything and the buffalo you know written statements that would indicate that she was in agreement or in conspiracy to commit marriage fraud i think  making sure i understand the facts yes there's a discrepancy there but it doesn't establish that there was a bona fide marriage either way that that's right thank you counsel thank you o statement was produced because there's no information there's no date on the statement and it seems like it may have been in two thousand and five produced i mean written it may have been in two thousand and four but it was certainly never job we're seeking a reversal and instructions to the district court to remain to the agencies so that they can have an accurate adequate chance to rebut the statement and as our due process argument makes cross examine both the immigration agents and bufalino it should just