challenge that finding that she's barred under section two horsey but the statute in my mind is somewhat unclear about how we go about doing that i thought her problem was the first marriage is fraudulent and once you have a fraudulent marriage doesn't  matter good good one you're barred from adjustment of status that's they're finding but the thing is your honor that the the finding that was made the first time around i don't know actually construe the original decision is actually making it to force the finding but any to the finding that was made in the first with respect to the first petition at that time is not binding they need to re consider that issue in the context of the second petition that was filed in the case law and that is pretty clear let me just give you yeah i mean essentially we want to challenge the two of foresee finding and the two foresee finding that that issue was made when the petitioner married her second husband and as a defensive matter as a defense to deportation she filed an i one thirty or her husband file and i went thirty with u s c i asked as a predicate to her filing an application for adjustment of status and i think the important thing the thing that makes this case difficult for me is that i one thirty in this case the petition that was filed by her husband that's a predicate to her going being able to go forward on an application for adjustment of status but the application for adjustment of status that she was seeking to file it was a defensive application it was a defense to the charge of removal and i think that that's important because you know to point to be nine basically says any question of law or fact that arises from a proceeding but for a move somebody from the united states basically has to be litigated in this court and because she filed her application defensively it appears to me that to forty to be nine would suggest that it's this court in only this court that has jurisdiction to review the legal issues that arise husband right right and that is the visa petition that's the i one thirty petition that was denied but that you know that's an interesting point although the visa petition was filed by the husband the two foresee finding that was made in the context really quite correct to say that she filed the pensively because she didn't file it at all you're right about that the husband filed it as a as it sort of a condition precedent for her being able to go forward on an application for adjustment of status but it's important to also remember that the finding that was made in the context of adjudicating that petition relates only to her if the two foresee finding bars her from ever being the beneficiary of any petition from her current husband a future husband a parent a child yeah as i understand it the deal is husband says i want to keep my wife in america right and they say no because your wife wants for file the fraudulent right claim to fraudulent marriage right so you can keep your wife in america right so i guess the issue is you're absolutely right the husband files the petition but then the question still remains the the the issues that arise from the denying that any other claim to being in america right that's right she didn't hear on it through these two or something and overstate it right that's right she didn't have any claims her prevented by from applying for adjustment of status which would have resulted in me getting a green card because you deny the heart my husband's petition which was a condition precedent of my going forward on my just an application and she's saying that in in denying that petition you denied me a fair procedure because you rely for example on a statement from my ex husband and i never had the opportunity to cross examine him or really even rebut that statement you relied on an investigative report that i never got to see or you know cross examine the authors so she's challenging the procedures she wants to challenge the procedures underlying the to foresee finding and in order for her it's relevant t deportation case obviously because again one the visa petition that's at issue is what she never had an opportunity to appear and contest and the previous adjustment of status no it just doesn't work that way around i mean the part explain how it works i don't yet know what happens in practice really is is that they say well we looked at your file and there are these documents in your file and we believe that some opportunity to cross examine him to question if you have noticed an opportunity to hear she has she had no opportunity to cross examine him because there isn't any opportunity to do that in these two a four c interviews any i went interviews it just doesn't happen and it's not set up they could do it but i've never seen it happen in time and i'd only take your say evidence and emigration but what i mean is and you have noticed in an opportunity to be heard in that adjustment of status proceeding it depends on how you define an opportunity to be heard she had some limited opportunity to present evidence but she didn't have an opportunity for example to cross examine her ex husband and in our view that's that's a point of any challenge that we would want to make and you know ultimately we're not talking about the merits of that challenge we might be wrong about that we might be right we're really just concerned at this point as with where do we bring it do we bring it in district court or do we bring it to the ni getting becoming the beneficiary enough of an approving as a petition in my view they undermine the fundamental fairness of her removal proceeding she has a right to go forward if i can excuse me if i can explain that she has a right to apply entitled to apply for in the removal proceeding and it's not that the petition the appeal for four or five years but what should have happened in our view is that the government should have promptly forwarded the appeal to the board as they were required by the regulations that we both of these appeals would have been pending before the board at the same time and the board in our view if jurisdiction rests with the ninth circuit on this issue the board should have consolidated the two so that they come so that the two cases come before this court as a unitary home rather than separate pieces i'm not sure i got this right at all but if i understand the law correctly on this a foreigner who married to an american does not have any right to stay in america to be with her husband the american has to right to get the foreigner visa so that she can stay with him in america and what happened here was the husband applied to get a b so for the wife but then when the service discovered that the whole thing was phony or at least an airplane it was phony he wrote this letter saying well i married her as so that she would pay finding is and is a permanent bar to ever having any other petition approved on that person's behalf and so that's why it's it's especially important that the procedures underlying any such finding be fair because they prevent her from living with her current husband when everybody agrees that that marriage is on preventing her really isn't the point it's preventing him no i think her i don't agree with that because obviously it's that sort of rings of whether she has standing to sue he had no right to  condition that it's a predicate that has to be met before she can go forward on her application for adjustment of status but the application for adjustment of status is hers normally these are filed as what we call a one stop that her application is accompanied by his petition but she can't the judge the immigration judge the way it's set up now can't educate her application unless there's an approval from u s c i asked the petition that was filed by the u s citizen spouse but ultimately she wants to challenge that and she can because under the a p a obviously she'd be a person aggrieved by agency action this court has already ruled that she in federal court would have standing to challenge the denial but not withstanding the a p a and not withstanding this court's precedent if you challenge such a finding in federal court the b i he says she doesn't have any rights over the petition administratively now there's a huge inconsistency there that we  think needs to be resolved but that is the regulations but that regulations that says that all was promulgated before section two forty two benign came into effect and i guess on that point your honor the question and i don't have a strong view on this but the question for the court i think is whether the regulation that was promulgated by forty promulgated by the government is that inconsistent with the more recently enacted two forty two b nine that says that all the stuff has to come  subsequent to the board's denial of her motion really have to do something about this concern what she really wants to do here is attack the finding that the first marriage was fraudulent  and she says that she never got a fair chance to attack if she were correct on that and she would get the relief she seeks here which is an opportunity to attack that determination and she succeeded in proving that it was not a fraudulent marriage you're just having a spat and that's why or husband wrote this letter about she's behind other installment payments  goodbye and if she succeeded in all that then i suppose she could succeed on her second adjustment of status and get a green card and stay with us the number two your honor it appeal that to the district court and that is where the appropriate appeal lies this court the new husband can appeal to district court the new the new husband the second husband can appeal the second i one thirty's denial to district court this court held in l does any determination regarding ins conduct during a visa petition proceedings is collateral to a deportation order and must initially be raised in the district court so she beneficiary under the i went thirty and as the board's much for your oath and point is she does not have standing but her husband could i am confused about that as you could probably tell i thought it was the husband's right to keep the wife here and that he was the petitioner but it sounds as though both up have something they file she files an application he files a petition  they both have some sort of right she can verify for me and i believe i believe you are just saying your honor what i'm saying is that her husband because the issue here is dealing with the i want thirty which was filed by her husband appropriate because under twenty eight u s c section sixteen thirty one it reads that it could only be transferred to the district court if it could have been brought in the district court initially and because this appeal today is a rising for twelve fifty to be nine in a rising it's a rising from an order of removal in this court today is the appropriate and only then you for that feel because it cannot of originally been appeal to the district court can be transferred directly that it was a separate independent proceeding and therefore there was nothing in the regulations that required the consolidation of the two the board also recognized the unnecessary delay if they had there was no the same way as husband and wife are separate people but that is a jointer well your honor even given even if the government were to be faulted for that delay as previously mentioned joe you ran through your time but when you take thirty seconds has complicated if the questions that we are trying to raise with respect to the two of course the finding here arise from the proceeding that was brought to remove her from the united states there is no district court review of those questions and two forty two b nine says that explicitly i know that the case law that proceeded to forty to be nine said district court has jurisdiction but that's just begs the question is that case law still good law in view of two forty two b nine generally if there is no deportation or removal proceeding that was commenced i agree it's clear you've got to go to district court but if the application for adjustment of status and the underlying these are christian are filed as a defense to remove all it's not at all clear to me i would rather be in district court but i think frankly the language of the statute doesn't really allow for it that's where we are today and i thank you to grow versus holder has committed