statements himself over a period of ten years this case turns on true and a false or coerced confession are in your argument so are you arguing that there there is not substantial evidence to support the finding of marriage fraud by the agency is that where we are yes that made the statement that there is no evidence and that the decision on review is flawed it's flawed book on oh yeah sorry no ok then so there is not substantial evidence of yes what are the other with respect to substantial evidence you know we sitting here my think there is yes there is some credibility questions about the affidavit but that's normally we would allow the agency to weigh that draw the inferences the agency considered it very clearly in conjunction with other evidence and found that there was grounds to find marriage fraud and it and so i guess putting to one side i guess this is the substantial evidence question which we do give a lot of deference to how the agency has weighed the evidence are there legal flaws with this decision that you want to press here yes ok what are they the agency did not apply the standard of proof required to find marriage fraud they did not evaluate the statement that interest is the property interests that arises from that statutory right to a visa you know you have the right so you are not arguing that there is a liberty interest in a right to marry you argue that in the district court but you're not arguing that here ok did you raise this due process statutory right to a visa as a protector property interests before the district court because the district court did not address that ok where in your summary judgment motion did you raise  why you were you know it i will make you but you were telling me i will find it in your summary judgment papers i think it's called as a weapon the statement of proceedings that came from me investigation yet counsel if i could follow up on that point a my question is while i understand your points does and does what you were provided in the way of the notice of intent to deny in the notice of intent to revoke and the statement of mr king itself does do you agree that that complies with the regulations that exist here your client received did not comply with the a political regulation this statement essentially the statement said that the total stranger reigns and painting to marry on its it was like who what when where why there was no basis by which he you would have seen that the whole argument that he never live at home in the timber lane would that alone the investigators found that his mother said yes she knew he was married to august and he didn't she didn't know where you live but she knew he didn't live there and now we have the mother come on predicting even the decision we h investigation in they tended there in two thousand not i think of two thousand and eight and it was there until two thousand and twelve and i see no fraud and returned going to investigate mr paine there was no opportunity for him then afterward to call any evidence person that putting the responsibility on the government to make mr king available for cross examination wouldn't really do much to reduce the risk of error in a case like this because your client and his spouse the knew of mr king's admission and they had access to him he had a perfectly amicable relationship with his ex wife they could have gone back to him and gotten their own affidavit or statement if there was anything to clear up so what's your response to that whether or not that was answering directly to the period of time between two thousand and fifteen when the notice something temp was issued two  two years that brings us up to two thousand and eight in two thousand and eight mr pin declared unequivocally his marriage to august was not simply to  citizenship and immigration services explained its proposed reasoning to detail the evidentiary materials on which that reasoning was premised provided a copy of the most important documentary evidence that being mr king's two thousand and fourteen sworn declaration and allowed mr wu sue an opportunity to submit whatever evidence and accompany an argument he desired in support of his alien relative position and after us c i s was not repeatedly held that the article three courts review sput b i a determination is under an extremely deferential standard it's detailed opinion the district court correctly concluded that mr wooster could not survive past the significant hurdle and that his arguments improperly asked the district courts really weigh the evidence before both administrative adjudicators this court should therefore yes your honor i'm sorry counsel i just want to bring you back to the district court opinion for a minute short so the district court opinion in dealing with the due process argument assumed without deciding that there was a protected liberty interest in marriage i'm the petitioner is not advancing that that protected interest on appeal you argue that th petitioner did not advance before the district court the alternative protected interests that he is advancing now the property interests are protected by the mandatory statute if you're right on that isn't that generalized property slash liberty interest analysis that he articulated in the district court then yes that is the end of the story we don't believe that that even if it isn't the end of the story that  almost exclusively about the right to marry under loving and i'm just trying to figure out whether this was enough to put the just sort of court on notice like hey we've got this it's not just the loving right we're talking about we're also talking about a statutory protected interest what do you think i don't i don't believe in gods your honor you know a similar to this court's repeated holdings that that humans that are advanced in cursory fashion are not preserved for a pilot review similarly an would say that the power in the district court primarily if not exclusively relied on his belief that cases such as loving and the more in the supreme court's more recent jurisprudence on the constitutional interests of marriage were the the grab a man or the the situs of his property slashed it liberty interest under the due process clause meet one of the reasons i'm asking about this is i know you don't even want us to rule on whether there is a protected interest because you're confident that you win on the you know what was enough process provided in this case in any event but i will say i guess let me just sort of present you what i would think of as the strongest argument for a right to cross examine in a case like this you know for one thing we know that the king affidavit is pretty pivotal pivotal in this case because pre affidavit the b i m reversed and said he's in consistencies aren't enough there they don't constitute evidence of marriage fraud so it's not like the king affidavit isn't doing a lot of work here and then we do know that there's been a change in his position over time so there is you know on its face there's a credibility question was he telling the truth the st time or the nd time and in circumstances like that it's certainly not it's you know you would have to be crazy to think if your process would require that you get a chance to ask this guy some questions so your honor i would say a number of things to cheer on or your honest question st is to your last point that there is a credibility issue here and that reasonable people might believe that that cross examination would assist in that in developing that credibility determination i would st to to the supreme court's albeit fractured analysis in good in which if one treats justice kennedy's concurrence as the least or greatest common denominator depending on one's perspective the amount of opportunities had pursuant to the regulations to call mr king's two thousand and fourteen sworn statement into doubt more than satisfies not ever due process is required as a prongs of the due process analysis right there is notice and then there's the hearing and i thought the only issue in did was is the notice sufficient but that didn't did not go on to consider like what kind of process do you get your hearing i thought and  have clearly said in our case law those are two separate questions two separate analyses under the due process clause so i don't see didn't really speaking to notice procedures opportunity to be heard i'm sorry the opportunity to be heard the hearing problem it seemed to me that it was all about notice and i totally agree with you that the notice in this case was clearly sufficient under dead but i think that's a separate question i do disagree with your honor respectfully on that because if if it were the case that that even if the notice is sufficient there still has to be a not an opportunity to be heard at the back end of that notice in order for due process to be present so it is difficult to read justice kennedy's opinion and say well the notice is fine but i'm not even going to address what the opportunity to be heard in if one justice kennedy says is that what the due process requires is only some year arctic you will basis consistent with mandela that of as to why the state ringback department has denied this alien petition or this immigrant visa petition then that has to be all the due process required of due process cause requires as both a matter seventy's right it's an i thirty challenge missed the same basic challenge in the court and below apply mendell to the question about illegitimate paternity but whatever the question is it seems like philo tells us if we get there i don't know i'm not at all sure we get to all of this but that that direct saw us in accordance with the justice kennedy's concurrence that as long as there's a bona fide legitimate reason given that we're we're we're done we don't we don't you know probe and test the justification for the for the procedure i fellow and that's consistent with the argument i am trying perhaps in artfully to articulate here but to go back to your question just to terrorists even if even if gin does not itself on its own and has due process inquiry i think it is important to look at this record to see how many opportunities that mr who's who had to challenge mr king's two thousand and fourteen statement in many of the ways that cross examination might have and that is on five separate occasions he had the ability to articulate what questions he would have asked mr kane on cross examination and and put a different way what gaps there are in the bald not all but the more just written declaration and that those gaps themselves hauled the credibility of that two thousand fourteen statement into question and mr wooster did this on numerous occasions and the b i a simply rejected them saying those credibility concerns that you are raising such as why was the the the interview taken at at at a restaurant why wasn't it at u s c headquarters those sorts of things do not move us as to whether or not that statement is credible to put it a different credibility and substantial improvement of evidence of marriage fraud yes frank except on the cross examination question i just want to what exactly do you want us to hold is it that due process never would require cross examination of an affidavit like this of an ex admitting to fraud the b s what the b i a helms on the due process question was that there is no due process violation in considering that affidavit  examination and in conjunction with the other evidence so the b i a is holding was limited i think to a case where the affidavit is not the only evidence and that sort of brings it in line with where i think the th circuit ended up as you  point out in sort of limiting its precedent on this requiring cross examination to cases where that's the only evidence so so how broad a holding are you looking for from us on this right to cross examination your honor i think that this court can address the due process question here and one of two ways i think you can say consistent with our position about the meaning again that the mere procedures and and multiple opportunities to be heard and to provide evidence satisfies due process full stop but even if this court were not convinced of that position i think that the that that our position is that cross examination is not necessary across the board because of those conclusion that it is not necessary as a matter of due process for cross examination but even if this were not persuaded by that whole day i think that the that we succeed on the due process point here because this record reveals offered that under matthews versus eldritch cross examination is never required we be affirming a holding the b i a didn't mean to be a only said there's no due process violation in considering this affidavit without cross examination cases i got two questions i'll do them in reverse order if that if that issue was properly raised below and that's it does not look like it was but but i want to hear from you on that but if that issue was raised below is it even if they are substantial evidence is is that is being allowed calls examination in new york and not another given the way in which those procedures came about they are the result of a longstanding consent decree from the southern district of new york in the late one thousand nine hundred and seventy s i believe and as a result the fact that that district office is required as a part of a consent decree to go forward with such cross examination does not itself make the fact that the regulations do not provide for such a cross examination across the board arbitrary  with respect to the the standard the standard here at the boards and for circuit articulated is to find out whether or not the that standard includes the procedure that's required before you make a determination of marriage fraud and that procedure includes specifically the evaluation with the nature credibility and basic lead the quality and if you look at the only direct opposite and i'll say that this is similar to a case in which you have no other evidence york right now there's no reason why that cannot be also occurring in the ports or because it's a a false now whether or not it was brought up in the district court or not it doesn't alter the fact that the agencies decision failed to we are here to ask for fundamental a false or coerced confession should never be the grounds to destroy a family there is no means by which the agency was able to see to have validate that the truth of the  you this is normally the part where we would come down and shake hands with counsel and express personally our gratitude for your assistance today we will today we will do it remotely but we are very grateful that you were here and could help us with this case we will take just very short recess while we get the new lawyers into place