lawful in the case mr markel filed a timely motion to reopen removal proceedings within the ninety day period committed by law the basis for that motion was that his wife leona had just recently filed immediate relative petitioner set forth in matter of a larger and the largest standard violates noncitizens fifth amendment right to due process of law and removal proceedings both on its face and articles by chico i wonder if that is a pleasurable because that case presumes that the marriage occurred after the alien was ordered removed whereas in this case marko was married before he ever appeared before the i j a and he had an opportunity  already had an opportunity to present an application for adjustment of status based on his marriage the problem with that reasoning is that it is not his marriage which qualifies him for adjustment of status it is the filing of the visa petition that was the standard that the board used to deny reopening ultimately it's said that a lot of the cheek of governs all cases where there is a newly filed i want thirty protection and the cracks a request to reopen base there on the fifth prong because the government filed an opposition in it did so most importantly without truly considering the legal reasoning or the basis of the govern clients motion be barred by eight c f r one zero zero three point two c one which requires to be i a to deny a motion to reopen and i'm quoting if it appears with the aliens right to apply for such relief was fully explained to him or her in an opportunity deal fly therefore was afforded at the former hearing and left the relief aside on the basis of circumstances that have arisen subsequent to the hearing in this case the i j a inform mr markel of his right to file it and an adjustment application of his initial hearing his wife did not take advantage of the opportunity to file the application doesn't mean the fact that she didn't do that doesn't mean that the opportunity didn't exist so how do you get markel of what was the possibility that he could be eligible for relief if his wife were to file a police a petition she never did that so he never had that opportunity and i don't believe that you can deny him his request for reopening proceedings because of an action that his wife didn't take when he was in front of the immigration judge neither the immigration judge for mr markel or long as you've been his wife and they've been married for eight years and how long does she have to file she had presumably a number of months at any rate it was and how long how much time passed before she  can you tell us what choir that's why you say ok it doesn't matter well maybe it doesn't but that's not what we're looking at we have to look at this the court reasonably decided he had a band and  record it's pretty hard to say the court i cannot see how one can abandon an application for a form of relief when he was never eligible for that form of relief yes buddies with time he was he was in a position to be eligible expect that his wife had to make up a man whether she wanted to do it or whether she didn't i don't know why she didn't want to do it by this pretty clearly she knew there was a requirement or she could have known that was a requirement and she didn't file a phone did and when she did it was filed within the appropriate period and a motion to reopen was timely filed according to the rules set forth by the board of immigration appeals i have seen numerous reasons for delay did so you have to tell us well i'm not i believe that in fact what the immigration judge should have found was that the application was predicated because he hadn't established reputation eligibility there's no evidence of record that  was ever filed and without the petition even being filed the court shouldn't have even accepted the adjustment of status paperwork because he and this was even before the large when the court couldn't continue or reopen proceedings based simply  both the manner and the outcome were lawful we respectfully request that the petition be the knife at this moment let me just take a step back and clarify what i believe has already set forth in the briefs in the twenty eight days and that is that although originally not grant the motion to reopen and last evidence was not available and could not have been discovered or presented at the prior opening just judge first asked whether the to some extent why those why those up patients were not presented and a timely manner and the record does certainly make clear that mr markel was afforded every opportunity to do so on august cancellation of removal and voluntary departure at that hearing the immigration judge made plain and the immigration judges warnings are in the record before the court that a failure to complete the applications you want to give us your rebuttal pl you mr smith that mr markel after he was married during an extended period of time but my recollection serves me we're talking six seven eight years during any of that period of time his wife could have taken the action that he needed to do need to have taken she could have and again that is her right and her decision to make and  assassination occurs after the judge's decision it's a fast it's a new fact that happens it may affect the outcome of the case and should require reopening thank you thank you very much the case just heard merkel versus ridge is submitted and we will now you may proceed whenever you w