judge chin and i are very fortunate to have with us judge meyer of the district of connecticut who will call a calendar just counsel indicate your presence and now found them in an miscible which required him to apply for a waiver isn't it isn't it a problem that that you didn't do what i can tell and correct me if i'm misunderstanding you didn't raise the argument about materiality you know it would have been  because it was raised by the by the agency but i'm you can be gracious to be getting back to the so let me just ask about the immigration i'm over here  about the immigration judges inquiry into the background facts of the trial was that proper was it fair game for the immigration judge to do that terms of considering the adjustment of status was it or was it not proper for the immigration judge to to look into essentially make an inquiry into what happened with respect to these  this sexual contact or possibly a rape first degree sexual assault as charged wasn't it proper for the immigration judge to make that in korean the first place congress gives the agency g immigration judge discretion but the disc his his his his was the immigration judge though permitted simply to make an inquiry into what were the facts involved in this very serious charge for which your client was acquitted immigration judge wasn't didn't said essentially set out to try to figure out whether your client had engaged unlawful sexual conduct the immigration judges in directed towards trying to figure out if your client had committed the charged crime i think as he was as the immigration judge is free to do right and i j is free to look at that even despite the acquittals free to look at the facts and try to figure out well is there at least maybe inquiry to try to figure out if there was a forcible sexual assault right no that is not what the immigration judge is that is what is state of connecticut that is not what the immigration judge authority involves in  touching of a minor and that was all that the that was enough for the called and for the agency to drool she must have complained to the police at some point right because there was a prosecution a case where you have you know consenting adults doing engaging in sexual conduct in the privacy of their home and in that sense this is a case where there is a minor where she may or may not have given consent but it led to criminal charges and then an entire trial so was the immigration judge permitted to probe those facts to sentencing judge can consider acquitted conduct you know even though a defendant was found not guilty the conduct still can be relevant to the sentencing why why couldn't the conduct here be relevant to some of the issues i j probe whether there happened force or lack of consent i would just i would think to do that would be to open up a whole so for instance if the state of connecticut decided to drop the charges against a respondent i think and then inquire as to well even though they didn't pursue charges against  chief judge katzman and may please the court kaitlin hello again on behalf of amicus pursuant to this court's order in support of neither party this court requested that amicus address the question of whether petitioners misrepresentation was material and whether an immigration judge may deny adjustment under twelve fifty five a for legal sexual conduct including addressing the amendments identified in the ninth circuit's case yet has product let me start though by briefly touching on a question that you did not ask us to address which is the question the judge chin and judge meyer i believe have been raising which is what about whether or not the petitioner committed on lawful sexual conduct in other words was the i j properly authorized to inquire into whether there was some proof albeit not beyond a reasonable doubt in light of the acquittal of the charges in connecticut but that there was non consensual sex the woman at issue here was a minor but above the age of consent and so if it was consensual as mike my friend here explained there would obviously have been no crime we did not squarely address that question because it was outside the scope of the make a sorn or better but i believe at page twenty eight of our brief we lay out some cases which do touch on this question there are cases that the government has  fed which allow for evidence of criminal conduct to be considered where that conduct did not come in aid in the final conviction our reading of those cases is that they did not involve an acquittal so the question of whether an immigration judge may consider conduct in the face of an acquittal was not presented we did identify some cases almost all of which are unpublished which cut the other way but simply put that out there for the courts consideration let me turn to the question that you did ask  which is whether or not the immigration judge may consider legal sexual conduct you have to begin i believe with the statute twelve fifty five a states that the status of an alien quote may be adjusted by the attorney general in his discretion that's a very broad grant of discretionary authority it contains no explicit restrictions and in fact the u s supreme court in considering a very similar provision concluded that that authority was quote on fettered that could resolve the question before the court if the court was inclined to take that the court's analysis in yang at face value  in our view the question is a bit more complicated than that although a hard question i believe as i think our brief suggests the ninth circuit in examining this question look to the three amendments that this court pointed to  n its order and was of the view that these amendments events congresses intent to preclude consideration of legal sexual conduct in making immigration decisions the ninth circuit did not express invoke a constitutional avoidance canon or a clear statement will but it did suggest that allowing consideration of such activity had some constitutional dimension noting that such an inquiry would be highly intrusive and that it related to an important aspect of personal identity and said the supreme court's decision in kent in which the supreme court did a provision regarding issuance of passports by the secretary of state that confer very broad unbridled discretion and the court said that there would be reason to read that to imply some constitutional constraints of the ninth circuit suggest that there may be i believe some concerns of a constitutional magnitude but does not expressly read the statute in light of those instead the ninth circuit turns to three amendments we've laid out in our brief why we believe that they are perhaps not as provocative at the ninth circuit believe them to be and the key point here is that all three of those amendments the one about sexual deviation polygamy and adultery concerned eligibility factors and the precedent of this court as well as other circuits and yang from the us supreme court have held that when congress amends and eligibility factor for purposes of an immigration decision that a determination that a factor is not relevant does not at the same time preclude consideration of that same factor in making a discretionary determination that does not necessarily right because not there could be times when the congress when you look at congress that congress would not have and wanted this same concern being taken into consideration at the discretionary stage that's certainly the ninth circuit's view and i think it does shed some light on whether congress thought it was appropriate or perhaps could raise constitutional concerns for such conduct be considered but i would note that yang and jane from this court do say that as an interpretive matter when congress  amends an eligibility factor that does not directly bear on the question of whether congress also intends to preclude consideration that may be because with respect to the eligibility factors that's generally an on off switch right so if you are not able to meet the eligibility factor you may not move forward in the process the discretionary determination allows for a way in a range of factors and so congress making legal sexual conduct well that's part i think that given the precedent that it is difficult to take that away from those amendments on the other hand though i think that there is another interpretive principle that may properly bear on this question which is whether or not allowing an immigration judge to consider legal sexual conduct take for example sexual orientation the case here i think is more complicated because it involves conduct that i believe under the decisions that have been handed down following lawrence is not itself constitutionally protected but if you had conduct that was constitutionally protected or some other classification for example race or religion  i think the question is whether or not this court can and should construe what looks like a very broad grant of authority to reflect congress's intent to prohibit consideration of such factors and  this i think suggests an analysis exactly along those lines so in that case congress wrote a statute regarding if i may continue your honor regarding detention of someone there was no restriction that was included in the statute at all the statute said that an individual may be detained beyond the removal period and what the supreme court said is that although the  word may be detained suggest discretion it is not necessarily limited discretion and if weeding some limitation into the statute that avoids the risk of bumping up against a constitutional limit  necessary then the court can do so that's precisely what it did instead did this and clark the supreme court looked at the same provision and it said that a statute is not a chameleon so even if in a particular instance there may not be a constitutional concern that is raised by applying a statute in fact an unfettered and extraordinarily broad way that if in other circumstances such concern would be present you have to read sachi the same way no matter what the specific instance is in which it's presented and so if the court applies that principle and if the court also concludes that following warrants there is much legal sexual conduct not illegal sexual conduct that would in fact be protected and that an immigration judge would be precluded from making even a discretionary determination on that basis then i think it would be possible to read that broad grant of authority in twelve fifty five day as the supreme court did in said this to include an implied limitation that would be the case even though the conduct at issue here would not be entitled to any constitutional protection so that there's a uniform reading across circumstances and i wonder if you might just briefly the last part of your brief talks about the materiality issue  very refer to some of the cases there does if we were to assume that it was proper for the i j a to ask about the underlying facts here  would we and the underlying facts happen to include reference to some protected conduct but constitutionally protected sexual conduct what does that mean that there that the the inquiry of the i j a or that i should say the misrepresentation that acres is necessarily immaterial well i think this is a very difficult case because you have here i believe possibly it's i think it's difficult to tell from the record whether the immigration judge was attempting to enquire about whether there was some evidence of non concessional consensual conduct or was simply saying that the age difference made the conduct such that he did not think that a waiver was appropriate you have arguably here both illegal conduct and legal conduct and so i think you would need to parse that out one option i believe would be to send it back to the b i a with instructions to remain to the immigration judge for some clarification on whether what he is considering or intended to consider was some evidence that there was not consensual conduct or whether in fact he intended to consider illegal sexual conduct above the age of consent consensual and that the age difference was what led him to his  his decision there if if the court were to do that i expect it would need to resolve the question of whether or not consideration of acquainted conduct was permissible if either the court decided that that was what the article then the transcript of the criminal trial but i think that that's not clear from from the record with respect to whether or not the misrepresentation would be material it seems that under the supreme court cases and monitor from this court that the question of materiality requires that the misrepresentation be something in terms of its subject matter that would be disqualifying a false defendant was acquitted of the bank robbery and his defense at trial was i didn't rob the bank i was inside the bank doing or just outside the bank doing a first amendment protest  and he's acquitted and he goes to his immigration hearing in similar circumstances and there he says i wasn't even near the bank i was in france it strikes me that if the immigration judge is permitted to undertake an inquiry into the underlying circumstances of the charges there i know you say that's an open question but if he if he is then his decision about the misrepresentation is materiality doesn't have to do with the fact that the immigrant was engaged in first amendment protected activity it has to do with the fact that he's looking the immigration judge is trying to look at whether the immigrant is being truthful as to the facts relating to the disqualifying aspect which is essentially i believe i believe that that's correct and the last piece of what she said your honor the facts relating to what he might be disqualified for is the limiter that monter and congress put on the inquiry because that's what gives the word material some meaning otherwise any misrepresentation whether relevant to the determination that the i j a is making or not would qualify which it it may for example for good moral character where there is no materiality restriction and so i think that that so the only reason right way that we get into the situation of  made into these facts about sexual conduct is because there have been a prior criminal charge and it would be a very different matter if we had a case in which essentially the immigration judges takes the bench and starts talking about asking somebody about their sexual practices i think that's correct although i think that that also leaves on the table the question of whether consideration of conduct for which there has been an acquittal and that that seems to be specifically the question is is something that is that is permissible because this court's order asked us to brief the question of whether illegal sexual contact is something that could be considered we did not address that issue in any detail one last pacific point if i can i'm happy to address any other questions the court might have i believe it was you chief judge cashman asked whether or not the petitioner had raised the question of materiality and it may be that his counsel  has set forth a view on that and i would direct the court on that question to a couple of pages in the record a r seven ninety two to seven ninety eight which is a brief regarding the admissibility of the  transcript which i don't believe directly addresses materiality but touches on these issues and then the question of materiality specifically is raised by the i j a by petitioners counsel and they are to sixteen to nineteen to twenty and to seventy to seventy six yes your honor to sixteen to nineteen to twenty two seventy six that's in the in the oral argument not in a in a written submission your ex thank you the court has any other questions  just say that the the abacus brief was extremely helpful to the court and really a model and i think specifically for example the the way who turned up that work and i thank you good afternoon again your honour's thank you for having me here today and representing the government petitioner in seeking relief from removal in the form of adjustment of status has a burden of showing that he is clearly and beyond doubt entitle to be admitted to the united states petitioner has failed to meet that burden petitioner having been sworn under oath an immigration court misrepresented the nature of his relationship with a minor and specifically of the existence of sexual conduct conduct that petitioner fully admits some self was morally just tasteful and offensive and was not simply a private matter but ultimately gave rise to criminal proceedings and that is one of the critical aspects of this case i believe judge my earlier asking earlier whether or not that i j was permitted to engage into the facts behind the criminal background and it's government's position that the i j a was properly permitted to do so and also required to do so or if you look at former i forty five which is the application for adjustment of status there is a question part three question one have you ever an hour outside of the united states been arrested cited charged indicted convicted fined or imprisoned for breaking or violating any law or ordinance excluding traffic violations and petition our check to yes as a result allegations of first degree sexual salt or forcible rape as a result the government then obtained documents pertaining to the criminal trial on june ninth two thousand and fifteen teach us submit an  complainants testimony at the criminal trial all petitioners counsel objected the i j a permitted the mission but seated these are just accusations ok this goes to the fact that even though the immigration judge was not permitted to look to see whether or not he was criminally convicted of a prime whether or not was pro but of his desire believe desirability to remain in the united states interests record interview indicate whether the immigration judge was probing whether this was criminal conduct or whether he was probing whether this was distasteful conduct and does it matter i don't think the record is explicit clear just on the nature of a transcript from proceedings what exactly his purpose was for the most part he did leave it to the parties to reconcile base upon my reading of the decisions i think he was looking to see whether or not  maybe some on lawful behavior and whether or not that unlawful behavior reflected his desirability in how he conducts himself in society especially where you have accusations of a forty year old having sexual relationship with a seventeen year old and as part of that too i think that i took into consideration whether or not yes she provided consent but also his role in relation to her he was a friend  the families who came over and numerous occasions even when the parents weren't home according to various parts of the record and whether or not he have been a have been in a supervisory position which may have changed the facts whether or not her consent if it recalling the record sensually saying let mr schroeder get on and talk about why he was acquitted that is right your honor and so when the evidence was first submitted was from v h s a excerpt of the complainants testimony and then from petitioners counsel the acquittal order and the jury verdict they had a discussion and petitioner then assume the stand and petitioners attorney at the time then initiate a discussion of what transpired at the criminal proceedings by asking his opinion as to why he had been acquitted at that point in time he then began his series of lies where he said it was a completely made up story nothing had happened had he had come on to the stand and said you know there are these very serious allegations against me it was not forcible rape but was consensual conduct and may have been a different story and so the i g then gave petitioner several opportunities and v h s counsel gave petitioners it wouldn't have been a different story right because because i think you've been telling us that just the fact that you have a forty eight year old engage in these you call them distasteful relations with a seventeen year old that was enough by itself that the non discretionary really gets correct in the matter of discussion as a colorful what i meant w was respect to the animists ability finding and so it's a lie and the conduct and can junction with each other but ultimately the agency still could have denied the adjustment of status application just based on the conduct alone i see so does it and i j have essentially free ranging discretion to determine such and such kind of activity  distasteful or reflects bad character it's government's position that is largely just in the nature of a discretionary decision it's a case by case basis factual inquiry and what we keep on coming enquire into somebody's sexual practices and find them to be distasteful what the government can in certain situations for instance with respect to marriage fraud cases in the bonafied a marriage they can investigate into it but a the government doesn't do this kind of situation where there's an adjustment of status or a waiver of in a mis ability to terminations is it your position that an i j consensually just kind of fish around for you know odd bizarre kind of sexual practices it's not the government's position that the i j a are the agency can generally do it it's more when there is a cause of concern such as the existence of our criminal record or if there is some other information that was present in the application or a record which would have directed him in that direction of if i'm sorry if you had for example sexual conduct involving bondage and dominance between two consults consenting adults is that something that could be an object of concern from a  i don't think i can officially represent a government position on that but i think again it would depend upon the context in which such information came to light but freedom of expression  sex can be largely protected by the constitution but in such cases where there is a discretionary decision then the agency can consider evidence as it pertains to the context but i can't exactly answer that hypothetical your honor so the differences between the situation where there's a seventeen year old and a are looking into the nigerians looking into bondage and dominance i think again it's because i was no longer a private matter it was something that gave rise to criminal proceedings it was a fact that there is a substantial age difference it was the seriousness of the allegations against him it was the fact that he was in a supervisory position to a certain extent there are a number of factors that come into play there not merely probing to determine a person's sexual preferences or whether or not the person has any sexual fetish but to see what were these facts that underlie the criminal proceedings and even though the government in the criminal proceedings had not been its burden of whether or not he had committed the crime beyond a reasonable doubt whether or not there is still something suspect that had occurred i gather i think i read this in your brief it's not the government's position that he should be denied adjustment of status because of the underlying cause or or or or  let's let's say he didn't lie he came in and he said i admit that i had sexual contact with a seventeen year old but it was consensual i can't speculate as to what the agency would have hitting the two twelve i waiver which he was required to seek did consider both the conduct and the lie so that being said there is a possibility that the agency would have considered the conduct alone but what made it more severe in this case was that he came in and he was untruthful i can't parse whether or not you take away one of the factors what impact that would have had on the immigration judges decision and then regarding materiality i believe your honour's had question or had inquired whether or not there was a materially materiality argument raised so in the brief to the board petitioner had explored by agency just because that claim was not preserved and then now before this court and petitioners brief it was not clear that he was explicitly testing or pushing the boundaries whether or not the misrepresentation w material the focus of the brief there was whether on whether or not the agency had properly denied the two twelve i application and so again upon initial briefing materiality wasn't discuss pressing its claim not pressing the failure to exhaust claim and we iterate that in our brief as well as just more before this court to whether or not he has preserved the claim and to what extent as the arguments section of the br pertains primarily to the two twelve i leave or how do we assess the import of state law versus federal law so in this case right there is much about what connecticut law has to say about the age of consent and the and the age of majority in connecticut if you look across the spectrum of state laws are they the  same how does how does the federal government make a determination since immigration is is federal law pre amps state law as i'm sure your justices  well aware it's a very complex legal analysis that's what i am asking you and we could spend hours here trying to figure that out it's different in this case to the extent that he was not charged as petitioners counsel pointed out with remove ability or in this ability for a crime or for conviction here it's more to do with discretion so there's not necessarily such a state specific legal analysis that is vote and hear more as what are just a general facts and factors underlying the criminal proceedings if that answers your question your hon see i have one minute remaining to the justices have any further questions or may briefly conclude let me ask you what was a question about about that whether adultery can be considered as a negative factor in looking at the various amendments and so forth so innocent court asked the parties and the amica is to analyze your piece prado one of the amendments in that case was the or the per se bar of a person a bar of good moral character finding base upon a dull tree however it was just a per se and it can be considered on a case by case basis as well as it pertains to a discretionary determination if you've got the policy manual which of us c i s which says that adultery may be a basis for finding a lack of good character  and then that that volume of policy volume twelve part a chapter five the manual cites eight c f or section three one six point one zero b three three two but that section doesn't reference adultery i have not taken such a close look at that policy memorandum and i would be happy to do so and get back to you with the government's position further guard but based upon the government's analysis of yuppies prado and as your honor spoke it seems permissible for the agency to consider adultery again not as a person a part of good moral character and with that i just want to know that the good moral character determination goes more so to statutory eligibility and not to discretion the government would just like to reaffirm that petitioner has not met his burden for adjustment of status he milt willfully misrepresented material information under oath and for that reason he should be denied adjustment of status thank you thank you all the court