case was based on the specific facts and timing of the situation it was it was limited to the facts of that case in this case the honors we have a completely different factual situation my client filed for adjustment of status after this court had already ruled twice that he was eligible to do so if he was granted permission to reapply for admission to united states he was in removal proceedings at the time he didn't just wake up one morning and decide you know the law is pretty pretty much in flux but i'm going to go ahead and file for adjustment of status he was invited to apply by an immigration judge in removal proceedings who then decided that he was eligible and granted his application so my client's reliance on the state of the line at that time was very very reasonable  reality the law was pretty well defined when you practice immigration laws i do you know there are certain things that are for sure and one thing is that the ninth circuit decision of the ninth circuit would normally trump a decision of the board of immigration appeals and as i said the ninth circuit had decided twice that my client was eligible for adjustment of status you mentioned twice one was a cost so what was the other one paris gonzales that was back in two thousand and four so  total was a cost settled law at the time your client applied well there was there were board of immigration appeals decisions that were contra there was one in fact that was just taurus garcia which was just a month before but the ninth circuit when they decided acosta did not refer to that case or did not mention that case i mean what what i would assume had at the time i wasn't representing mr acosta but had i been representing him at that time i would have thought that normally what happens a ninth circuit if that if the board of immigration appeals has a contrary ruling on a question of law then the board of immigration appeals a interpretation would apply outside of the ninth circuit but within the ninth circuit the decisions of the ninth circuit would be the law yes i guess what i'm saying is you contend that your client was reasonably relied on a cost versus thousand and six yet in the mandate didn't issue until later ok well my client applied for adjustment of status on july the twelfth two thousand and six in removal proceedings so that would have been after the  petition for rehearing and expired he applied on july twelfth two thousand and six in front of the immigration judge and then the immigration judge granted his application december eighth two thousand six but i guess you're saying he reasonably relied on a case that wasn't settled at the time he applied he applied and crossed his fingers hoping that the state of the law would remain well in there but there was also even prior to penalty fee adjustment of status so i mean i think that the law was a lot more settled at that time than the government is arguing i practice immigration law and i know that at that time we were applying for adjustment status for clients in the same situation and we thought the law was settled turnings we thought the law was pretty settled i did and it came as a surprise when when the court reversed itself and would impose in this case it was it's been almost ten years now since an immigration judge at least decided that my client was eligible for adjustment in the case was appealed to the board of immigration appeals  government interestingly enough in their brief to the board of immigration appeals after my client was granted adjustment of status did not even challenge perez gonzales and the costa i think that's very very interesting that they've appealed the decision on other grounds they said that the immigration judge abused his discretion in granting adjustment status but they didn't challenge the validity of a pair of cousins alison acosta in their brief to the board of immigration appeals and this was after the board of immigration appeals had made a decision stating that that was contra was against acosta could i just make sure i understood the exchange about the dates so did he a part for a petition for rehearing was denied or before i'm just a little bit confused about that exchange he he have applied for adjustment of status july seventeenth two thousand and six and when was when he actually submitted his application and  right you were just mentioning other people who were in this twenty one month period that car vs rodriguez talks about if you have a sense of how many petitioners  in this situation that your client isn't i would guess that there are at least thousands but there was a class action settlement i don't know if you're aware of that your honor that will allow certain people that were denied adjustment status based on the overruling of paris gonzales to react to reopen their cases before citizenship and immigration services however the class action does not cover my client it does not cover people that are already in the ninth circuit so it's only for outside the ninth circuit's for people that are out so it's pretty complicated but it doesn't cover people that are have a petition for review pending folks that are going to apply under this class action settlement still have to go before immigration the immigration service and prove that the under the montgomery ward test that they're entitled to not have garfield's rodriguez apply retroactive to them but and if my client were not here and on a petition for review he would seek that sense of relief that i think that his the facts of his case are pretty unique i mean the immigration judge granted his application reliance he's he's a deportation because i'm an enormous burden he's got a wife that's the united states citizen he's got three children the united states citizens and he's been in the in this country a long time and his only criminal conviction is a misdemeanor  if they don't have statutory authority they need to act with statutory authority and well i think that i would argue that at that point they should have well that that point the ninth circuit cases had been overruled so i suppose that the that they had to do that but they should have engaged in the retroactivity analysis i believe and that's my last point your honor that brings me to my last point since i'm almost out of time if the court feels it necessary to develop the record the court could remand the case so we could have the board of immigration appeals or an immigration judge take evidence on the issue of reliance and and the montgomery ward factors but i think we do understand your position to be that we already know enough about that so if we agree with you we should just reinstate i just decision at this point i guess what i'm saying is i think we know enough about it but if the case will be mounted i believe that we could develop even more evidence to show reliance i'd agree on i believe the record  of the respondent attorney general and dark yes this court joined several other courts of appeal in determining the deference is due to the board's decision in manner briones under chevron and brand x the board also determined that retroactive application of brownness was proper based on consideration of the five factor test set forth in montgomery ward attempting to factually distinguish his case from the case of garfield's the petitioner in the instant case six a card that he asked the court to treat him differently and the vast majority of  immigration violators applied for penalty fee adjustment of status if such a request is without merit and it's not supported by the montgomery ward analysis but isn't he exactly in the twenty one month period contemplated by garcia he is in that twenty one month period however the question of what happens to those applicants for penalty fee adjustments this was not before the court in garfield's and in fact even the court and our fees agreed that in such a case it might not be reasonable to rely there are two contradictory statements in the garcias decision first indicating that perhaps reliance would be reasonable but then indicating that even during that period wouldn't necessarily come as a surprise that's what it's worth noting that there are three month comrie worth factors which are not additional in this this case is about the second and third montgomery ward factors and is set forth in respondent supplemental brief both of those factors favor the government in this case contra to the petitioners claim the  outset the tension between section two twelve a nine c and two forty five i was obvious and this led to a lengthy multi year discussion between the board in this court mr costas argument that the law was unsettled at the time of his july two thousand and six application for adjustment status is far from accurate he argues that the law was settled not on sound right which he argues that it was settled and that's far from accurate such is the case because in july two thousand and six at the time of his application for adjustment of status the course decisions and acosta were both subject to revision by this court under chevron and brand x and the board has consistently taken a position contrary to those taken by discordant presidents awesome acosta in fact just one month before this court issued decision in february two thousand and six and three days before a petition was placed in removal proceedings the board issued suspicion and torres garcia in which the board addressed the shortcomings in the now sets identified by this court in pres not totally unrealistic i mean how doesn't that impute a level of following the law of the b i and our court beyond what is reasonable could shouldn't it be that people are only responsible for knowing a lot of the circuits at their end that's already probably more than they realistically actually know to an extent that might be accurate but in this case the applicant was represented by counsel and if the court looks at the president's office decision from two thousand and four this court rejected the board's analysis because it's based on an ins memorandum and the board found that those the regulations and the statute were irreconcilable and so the the court deferred to the regulations as being reasonable as opposed to the ins memorandum and said that the board of course is free to present a sufficient analysis but that's blaming our court for getting it wrong i mean why can't petitioner rely on what our court has said if our court got it wrong how can he be blamed for that he can rely on it but the question is from the retroactivity else is whether  reliance is reasonable and in this case because the vulnerability of a cost was so clear in light of the failure of a custom to consider tours garcia and additionally it's worth noting that there was a circuit split at the time the cost  do we have any case that says if our court has decided a case in a way that's inconsistent with the fifth circuit the district courts in this circuit shouldn't follow our circuit because the fifth circuit disagrees and maybe certain might be granted some day i mean that's just not the way that anything works that's correct it's only to say that the law was unsettled at the time there was a lot of uncertainty because of this back and forth the board consistently taking the position that aliens who are inadmissible under twelve nic are ineligible for penalty fee adjustment status and the ninth circuit had come out one way with regard to two twelve and one c i two in president's office and then later in the casa with regard to to obtain and see i won the provision which mr acosta in this case is in miscible under so there certainly were ninth circuit decisions but again brenda x two thousand and five the supreme court comes out the decision and petitioner who was represented by counsel should most certainly have been aware brand x i don't think that's too much to add from decks like this because once the agency goes back and provides an analysis so long as the previous court decision the ninth circuit is not based on you know a unambiguous language of the statute the board's decision trumps under brain to x but it didn't trump left the country and start of the ten year period of exile so that he could then apply for a just in the us but since he was relying on the wall of the ninth circuit in two cases an applicant was inadmissible under two twelve and see eye to the companion provision and concluded in a case where an alien applied for adjustment after torres garcia the reliance wasn't reasonable so we have two twelve a nancy i won in this case but the argument that he recently right relied on president saleh post tours garcia is without merit because tours garcia clearly placed any applicant on notice the president's office was vulnerable in the same way that briones placed any applicant on notice and that's because it was clearly foreshadowed by the board's decision towards garcia and this petitioner applied after torres garcia and because we recognize that these two companion for provisions two twelve and one and two are so similar and to be treated similarly they were by this court the decision of the board and towards garcia certainly placed the petitioner on notice that acosta was vulnerable and in the light of brand x the circuit split regarding the issue of inadmissibility in two forty five i all of these factors put together could certainly have placed any reasonable applicant on notice especially one represented by counsel but has in this court already considered this question of the twenty one month period and said that there could be reliance during that period i mean this is reliance but recall the garfield's applied for adjustment says initially in two thousand and two before president's office and before acosta and the court concluded that there was no reliance in that case because his application came before any ninth circuit decision and so the court didn't have before the questions are on fox court thought it was important enough to have this discussion to foresee this case and you're telling us as a panel we should ignore what the on bond court collectively decided about this issue or at least discussed about this issue it's not honor it's a case by case analysis well no no no it's not a case by case analysis we have rules and sounds and case that well reasoned something other than a passing mention is presidential in the honor what i meant to say was that it's a case by case analysis when determining under montgomery ward whether the application of briones retroactively is appropriate and then garfield the court also made note of the fact that it wasn't it wasn't a pining whether any other individual might be eligible but this is at the end of the carcass decision there's a footnote for no thirteen we expressed no opinion whether other applicants may have void the retroactive effects of briones so the panel also wanted to make clear that it was certainly not a planning on i don't hear you making any individualized argument other than to say no one in the twenty one month period could view the law is settled and i think that garcia said the opposite as just a general matter of a twenty one month period garfield said you might have realized during that period and your argument is not that this petitioner hadn't heard of the prior law or something individualize you're saying as a general matter this twenty one month period there can be no reliance to the law was unsettled garfield the court did indicate that perhaps there could be reliance during that period however it wasn't considering that question in this case the court is considering you're just saying we should ignore that dicta again this is that problem just reiterating that a card that should not be made for honor the only thing i want to say regarding is regarding the brand x case the supreme court case that council mentioned that case was decided in two thousand and five but quoting from that case that case  instructed federal courts to defer to reasonable agency interpretations of ambiguous statutes and i think that garfield rodriguez did find that the agency interpretation was reasonable not maybe not the best interpretation i don't think it's of esoteric protection but they found it reasonable so under brandeis they had to defer to that interpretation of garfield's but there was no guarantee that the garcias court was going to that interpretation to be reasonable so if counsel argues that we should have been aware of brand x it was out there but there was no guarantee that the court in garfield's was going to follow brand and finding the  the board of immigration appeals interpretation of this statutory scheme that had been in flood and you know at least in some flux for many years would be reasonable so and in fact the decision wasn't you know honest from this mark submitted and we will go to the next case