mr ron bird may please the court john romberg from seton hall law school center for social justice for petitioner norman edwards i apologize unfortunately my students can't make the argument today family emergencies one sad medical family emergency and one happy post bar secret greece vacation nonrefundable so you're stuck with me edwards can't be removed from the country first the government hasn't met its burden to prove that he's removable by clear and convincing evidence the governing standard and in the alternative the agency's errors tainted it's discretionary assessment of adjustment of status to long term permanent to lawful permanent resident in our talking about weighing equities which were not allowed to do direct your honor so the ultimate discretionary decision is not reviewable but errors that taint the discretionary decision so if the agency is not weighing in the correct factors that you have the power to recognize you've repeatedly characterize that as an error of law that requires rience of the agency to exercise it discretion on a properly constituted set of equities is that an error of law if they mis state the standard or don't stated at all absolutely there are they didn't state here did they write that so there are two pieces one is whether he's removable and the most obvious  fundamental error requiring remain and is that they didn't state they didn't apply the governing standard which requires clear and convincing evidence the agency both the i j a n b a simply at most said the government has met its  burden and it's clear in the government concedes that the standard is clear and convincing evidence which is a very high standard it requires a firm and abiding conviction of the high probability of the facts and that simply was never even mentioned  let alone applied by the agency so at a minimum remained is required on the fundamental question of remove ability because a gaijin c did not even mention or use the governing standard now we've also argued that this is one of those rare cases in which this court does not even need to remand because there is no possible way that clearing convincing evidence could be found on this record now the precise question for whether his removal for having committed a crime involving moral turpitude within five years of his admission turns on whether he was admitted pursuant to procedurally regular process in one thousand nine hundred five that's the only and they claim that the burden for that force on here the burden for proving that that seems to be upside down absolutely the government had argued that the burden was on him to show his time place and manner of entry the i j a stated that the government noted that the burden was on him it's not clear whether the standard went when the case is illegal entry isn't it not in a case like this not a political here in the government so concedes and you're absolutely right that that's  yet further compelling proof that as a wise panel of judges once mentioned we just don't know we don't know whether the agency applied the carex and there's other there's other language that suggests the the i g impose the government the burden on the gut on the government and why assuming that's the case why wouldn't it be enough that he testified he quote went through customs in one thousand nine hundred five so so that the first question is is remain required because the agency apply the wrong standard or more to the point is  reasonable doubt and there's absolutely reasonable doubt about whether the agency put the burden on the government or at the lawful as to time and place manner of entry on him what there's no doubt about is it did not impose clear and convincing evidence maybe the burden on the government but not by clear and convincing evidence now assuming that it didn't at the very least you need to remain at we argue that you don't need to remain and because there's no possible way clear and convincing evidence could exist on this record and i think your honor is getting to the question of what is the record show about his entry his admission in one thousand nine hundred five and there are two main buckets here one is that the government has repeatedly previously the government said in effect we don't believe you are records show that you entered in ninety ninety one ninety three and ninety four as he said but that we don't have any record of your admission in ninety five we conclude that you did not enter through inspection  and that it didn't happen now they're arguing that not only we were wrong before it did happen but there's clear and convincing evidence in the record that it happened and there simply isn't oath because of the absence of the documents any documentation in the system showing that it's exceedingly unlikely that he entered after inspection in one thousand nine hundred five counsel explained to me how if that if you don't have the ninety ninety five year date that helps mr edward in the country he was convicted in one nine hundred ninety nine they cried in a crime involving moral turpitude right so that's the five years so if he if we don't have the one nine hundred ninety five date what does that mean for his no implication from ninety five other than he doesn't fit within the five year window that makes him removable so the he testified when i through customs with two hundred other people he said i went through customs with two hundred other people they call out your name before you get on the bus and check your id and there's no possible way an immigration official would have his name to anticipate that but it for get about the part about calling names what about went through customs that was my question before going through customs is the same as waving someone through a port of entry in a car i would think and the court the cases of consistently held that that is enough for procedurally regular admission it's it's possible that i went through customs included all the multiple criteria that you physically presented yourself that the officer had a full and fair opportunity to inspect that the officer tangibly communicated that he or she is determined that you not inadmissible but i went through custom with two hundred other people the government suggesting that both that and each to a visa necessarily includes inspection so therefore you should assume inspection occurred or that it's not only plausible possible but it's clear and convincing evidence that simply because he went through customs with two hundred other people that the government waved through two hundred migrant farm workers determining you know what even though the h two a program  theoretically requires inspection two hundred if you were just going to let you through their alternative argument involves that the person who checked ideas he got on the bus was a government official which i take it is not a primary concern but the of i went through customs is not enough to show at least clearly convincingly that all those criteria are met as the government previously concluded the work of some of the other errors in this  that simply flatly incorrect so the first question is to remove ability which we just covered in the alternative you don't even need to reach this if he's not removal there simply is no possible way there's clear and convincing evidence but in the alternative his application for a  lawful permanent resident based on his current wife the agency errors the most obvious one include the fact that the i j a specifically concluded that he had committed and been convicted of two at the larcenies when in fact he had neither committed nor been convicted of any and that goes how do you explain that he he reached that conclusion i i don't know i think the government suggested for one of them that mr edwards testimony he suggest was confusing but i don't find it so in the criminal records were in there and then for the second criminal record were there yes and so it shows that the charge but not the conviction and then for the second one it was pending at the time of the hearing the i j a refused to continue it for thirteen days despite the government's consent and the jake apparently considered the fact that it was pending to be equivalent to the fact that he committed it and had been convicted of it even though he was actually convicted of a pay taxes in that to that he just held that against him is a bounce a factor yes there are a number of other errors the most obvious one is the two petty larceny convictions nonexistent but yes the the i j a assumed to be entirely unfounded the i j a and b i e both said he categorically denied any responsibility throughout his questioning also completely not true if they'd said we don't find sophist and acknowledgement of culpability i might disagree but that's a fact finding that we'd be stuck with but it's simply untrue the categorically wholesale denied any responsibility for the tax problems it said it upheld the allegation that  do if you find that there is no possible way there's clear and convincing evidence remove ability but if you reach that second issue then yes the multiple underlying errors absolutely preclude this court from recognizing a proper exercise of discretion and could you explain for me why you are seeking to readjust now seeking a new l p r finding based on the new on the marriage the second united states citizen granted and they yes it's an alternative plan b which i think is unnecessary but out of an abundance of caution we also raise that the multiple errors give this court doubt about whether what the court what the agency actually considered was proper it's exercise on a proper record not subject to question the fact that it committed multiple errors that give reasonable doubt about the validity of its discretionary balance and preclude and then the final piece is the timing issue and we brief that we think that under dead there since the agency assessed good cause for a few slightly late documents without considering that without applying the correct legal standard without considering the factors that this court said it needed to consider that whether there's colorable could cause whether there's the possibility of substantial prejudice and here especially because if we're right about the the agencies errors then excluding these two documents would be the sole thing that would make and assuming that he's removable excluding these two documents if it has any relevance would preclude his remaining in the country where he's lived for twenty five years with a citizen wife and three citizen children and it just simply wasn't this echoes the previous argument what what i think is clear is the agency did not apply the correct standard for move abilities at the very least remand is required what we would like is we think it's go step by step  assume we agree with that argument what is the result of that we're through legal consequence of what so then you couldn't uphold the removal order what we would actually like is for you to look at this record and say on this record there simply is no possible way to conclude that there is clear and convincing evidence that there was inspection in one nine hundred ninety five it's possible they made maybe even arguably probable i don't think so but there certainly is not  us you enter an order stating that he simply not removable i don't know whether you technically need to remain to the agency to dismiss or you know i don't i don't know the technicalities but in essence if you conclude there's no possibility of clear and convincing evidence of remove ability you so note and then he's not removed pretty unusual for us to have such a detailed terminations on the evidence in the record absolutely this is a highly unusual case that fits into the rare situation where the issue was raised i went into in depth and the only difference is that the agency didn't you know articulate a particular standard but there's there's nothing further to be done then for this court to review it what is the evidence want to trace for us since your opponent has ruth very strong arguments based on the law camembert and want to trace for us the evidence that you think supports your position absolutely your honor mr edwards has conclusion to draw from the fact that that was his position but he's been well he's the one that's telling us that he came in in this manner that he went through customs that he would he had a visa to come into the united states and he came in on that he said about the earlier times he entered an agricultural worker that's right the in terms of the fact that there's documentation of those entries and exits that there were in his several other entries as an h two a word document in ins notes that he presented them with documentation saying that he had an h two a visa when he came in and then in one thousand nine hundred five and that there was an i ninety four which is the admission document number noted in there  adjudicated by ins he adjusted his status to l p r as an alien who came in or was properly admitted as an h two a agricultural worker and now he's trying to have it the other way and say no no no you can't prove that i came in in one thousand nine hundred five could you respond to your opponent argument that the government has taken the position contrary to what it's taking now in terms of that it's his burden while he says that the government has taken the position that he did not that we don't have any records for his  position taken by the government attorney in the immigration hearing she made an off the cuff comment that it's his burden to show manner of entry and that was in relation to an argument that was raised at the time she made it off the cuff the immigration judge repeated it in his decision simply in laying out the arguments of the parties what happened at the hearing it was simply in the statement of facts and these right the the the government attorney made that statement it's not right there's no evidence that the remove ability and it goes to an argument that petitioner raised below that's not really reiterated here with expect to the payoff in succession for the grounds of inadmissibility and that's what the immigration judge is talking about there that doesn't affect the discretionary determination and i'll discuss the whether or not the immigration judge was wrong there but it doesn't affect the discretionary determination which the border of used to know the board and not rely on that part of the immigration judges analysis and relied specifically on the immigration judges criminal fine with a criminal record as it was before the immigration judge and cites to the portion of the record that shows exactly what this individual was convicted of now error in terms of the immigration judge decision and again i don't think it matters it doesn't affect the board's and noble review the board clear that the immigration judge knows that he was not convicted of that two thousand and fifteen conviction i think the immigration judge's decision with respect to listing out those often says he's listing convictions that he was committed or and or was convicted of because he's trying to determine whether or not he committed offices as to whether or not the payoff and succession applied not whether he was convicted those often says it's not proper it's not eloquently stated but i think that's right and again at that doesn't go to the discretionary weighing of factors on the boards de novo review it simply does not implicate that the board relied on the proper evidence rather live on the criminal evidence showing that that conviction was rolled or the that arrest was rolled into the the force instrument it's right so it was considered to the extent that it was rolled in it was considered in fact in the sense that that realm of activity was a conviction for force possession of a force instrument we're talking about someone who was in this country for twenty five years right and so this a question of errors doesn't speak well for the government's handling of this case so i think that the that  really good job of creating error here i don't think those errors or think that particular resonated here i think he's pointing to errors in the record to the extent that that was an error on the part of the immigration judge and i don't think it was i think he was just listing the offices and you have in the record he's listing out the testimony why was he doing that why was he listing simply to show that he often succession does not apply to this individual's one thousand nine hundred five or how does he do that well because he has multiple convictions or is committed multiple crimes so he's laying out what the criminal history is whether or not he stated he was charged with or convicted it doesn't matter it doesn't affect the other analysis and in fact the payoff in succession has no bearing on this case anymore whatsoever that was simply to reject an argument that petitioner let go because it was simply wrong and you tell me why the i j a refused to accept the sealed medical records when all applicants are told to wait as long as possible since the medical records have a date of expiration and is that reasonable with a twenty five year resident of this country to not take them because i think they were how many days late thirteen days later or maybe less i'm sorry i'm  of time man of course but i think you need to look at in the in the whole context it wasn't just the medical documentation and i don't think that's the important document that was excluded the important document was the the affidavit from the co sponsor and it wasn't just fourteen days late now petitioners counsel asked for six months to produce all record all evidence and was given the date of october of two thousand and fourteen i believe she didn't submit it that she didn't submit it by the immigration courts deadline of fifteen days in advance she didn't submit it at the beginning of the hearing with the with the documents that she said were rejected because of the improper a number it wasn't until cross examination when the government's attorney said this is confusing we don't understand the the relationship here with the co sponsor because he's claiming this person as a defendant is taxes we need to see the financials we need to understand the situation here that finally petitioners counsel tried to reduce this document not the beginning of the hearing not until it was raised but it was raised on cross examination or whatever i think the immigration judge has wide latitude as to accepting or rejecting documentation fischer's counsel had missed all these deadlines had not filed these documents not having this document beforehand to analyze what the problems are with respect to this co sponsor of this application not having all the documents for the application for adjustment of status but for hand to properly go into the eight to the issues  from the enforcement of the deadline and when the attorney demonstrated good cause in the form of the need for a timely exam that the mistake that that it's an abuse of discretion and there's no good cause here  are the only cause she provided was she's waiting for two thousand and fourteen tax returns which was this we're talking about august of two thousand and fifteen here and that she was waiting for a signature on this on a saturday with no support there's no indication of why she couldn't produce this beforehand given government counsel the opportunity to do that i don't think you need to get into the issue of denial on the merits i think threaten lee that the agency acted within its discretion in rejecting those documents i think the matter of discretion is again on the board's ennoble review review the proper criminal history the immigration judge's decision or statements with respect to criminal history in terms of remove ability have no bearing on the board's the no decision as a matter of discretion as one question about removing going back to remove  lity could you respond to mr roberts argument about the nature of the evidence first of all there's the clearing missing evidence standard which was not arguably clearly stated by the a or the b i a but why is his testimony having no documents in the government's file why has his testimony that he went through customs responded and got on a bus with two hundred people why is that enough to constitute clear and unequivocal and convincing evidence of his procedurally proper admission i think because he simply tells us that he went through customs he tells us that when i got to the us i had to show documentation saying that i was eligible to travel because the a migrant workers group right getting off the plane they all came off the plane at the same time is that right that's my understanding yeah i have that's what because because they all got on the bus so they would be my understanding is you know so that and then went through customs and had  i've never seen anything suggesting that there's delegation of authority to employers to check travel document never runs this program presumably is there that they there to check on these people who are coming in whoever runs the program although  the the the program is split between between department of labor they've been and the department of justice now and in terms of ins at that point so through labor labor runs the migrant labor programs they run the certification for whether or not farmers are able to to have migrant workers come in and then the visas are processed through department justice now really two hundred people suddenly arrive and they're moved on the basis of some representation by whoever is in charge of the group right yes but that doesn't get us anywhere when terms of petitioners claim that he had to present travel authorization before he got on the boss and why and what what is there in the record that suggests that he did his testimony that's exactly what he said he did if i if i could take one second to address more than one second if you're for i gave mr on various them i'd like to addresses his his statements with respect to whether or not this case needs to be reminded the cases he relies on  simply cases where this court is determined that if it goes back to the board they'll reach the same decision otherwise the ordinary man rule applies it would be a ventura issue this case needs to go back to the board for the proceedings and if the court finds error you can't just make a decision on your own or not because the ordinary man rule applies it's a ventura issue the board has further for the proceedings to engage in will he through death is not the ordinance is not the ordinary case in terms of well i don't think there's anything out of the ordinary here the the agency has applied the proper standard the clear convincing evidence standard they held the h s to their birth and there's nothing to the suggestion that they were that they shifted the burden to petition  or that burden of proof is a state is applied all the time in immigration proceedings this is the immigration court and the board this is what they do it's in the boilerplate documents in the record everybody knows that it's a clear and convincing evidence standard and they specifically held throughout the da just met its burden of proof or anything else that mr robert scheer that you feel requires a man should here are just simply that there is that there was a determination in two thousand and eleven that he wasn't two very quick points first the the only possible basis to uphold a theoretical finding of clear and convincing evidence which again is it possible that the agency put the burden on the government yes is there any reason to believe by the clear and convincing evidence standard you know and then the only question is is that the person who called out mr edwards name and checked his id in order to let him on the bus is there clear and convincing evidence that that person was an immigration officer and i think the answer is obviously not no immigration officer would know his name to call out no immigration officer is going to be the one who says before you get on the bus that goes to our tobacco farm we want to make sure that you are and one of our workers whose burden is that to produce this date of entry by clear given thing evidence of the government's burden by clear and convincing evidence is it possible yes is there clear and convincing evidence on this assured confidence that a particular conclusion that would or would not under any reasonable scenario qualify that then there's no need to remain and it's one of the unusual we do if we don't remain and just what do we  do you conclude that on this record there's simply not possible proof of clear and convincing evidence and as i said i don't know whether you simply then dismiss or remand to the agency for further consistent proceedings but the question of whether you have to say they didn't apply t right standard send it back to dover or is this one of those unusual cases as you saw gomez points out and we believe that absolutely that it is thanks very much