or george edward this is a an unusual case it involves some very sympathetic factors the petitioner was admitted as or if he ga from romania when he was about a year and a half old came in with his family he has six criminal offenses that resulted in the removal proceedings none of those offenses are violent or dangerous offense was none of them involved weapons this appeal involve tuitions the st question is whether mr in the stars he acquired the united states citizenship when his mother naturalized he was still a child at the time that the statute alternatively if the court should find that he's not a citizen then the next question is whether he should have been granted adjustment of status under section two hundred and nine of the immigration and that immigration nationality act and ago when i was in law school my administrative law professor told us that everything begins with the language of the statute our argument in this case is entirely statutory on the section three  eight dealing with the acquired citizenship basically has four requirements and all of those requirements are totally scase and there's no dispute about any of them except of lawful admission for permanent residence itself contains several terms such as permanent immigrant method which are also defined in the immigration and nationality or else do you believe the barker case that the supreme court har arguments yesterday on yesterday about being admitted but in this simple has any bearing on this case i with all due respect your honor i don't know are several of the terms that are within the definition are themselves defined in the act and our argument has always been that if the requirement of lawful admission for permanent residents under section three hundred and twenty a is applied giving all of those terms there are congressionally defined meanings then there is no difference between the admission as a refugee and admission as a lawful permanent residence or adjustment of status under section t section number so tell me if this is a confusing question i don't use i in a section of hers but section one thousand one hundred and fifty nine which governs the adjustment of status to legal permanent residents why would congress have provided for specific ways to adjust to l p r status if you could effectively become l p r by just so well that's fine your understanding of this is an unusual situation in that the respondent came in when he was one half years old and never went through that process why i don't know other than well i do know the records indicates that his mother was told that when she applied for adjustment of status that he would be included this is an unusual situation because we're looking at it through the lens of the acquired citizenship statute ok but in the normal course of things people are not going to have a claim to accord citizenship they're going to need some proof of their status in uses it every day and it it it has all this gloss on it but it's like not everywhere as the analogy i use in my reply brief is that not every x wind is a horse you know i mean all horses erect winds and you may be used to seeing horses all the time but that doesn't mean that a mule or a donkey doesn't also qualify and that's basically where we're coming from is that it's kind of misleading if we say l p r as if that has one meaning and there's only one way to get to it what do you do with the fact that one thousand one hundred and fifty nine a was refers to actually l p r's because they're refugees which is what i think you're arguing i don't understand what the statutes talking about well as i say section two hundred and nine i believe has purposes other but this case is unusual because we're looking at it through the acquired citizenship statute you know section three hundred and twenty and it's an unusual way here for the issue to come up but as i say in the normal course of things you know if petitioner had not been so young when he came here such that his mother not only obtained a permanent residence but also naturalized long before he was  eighteen then we wouldn't be looking at all of this and this statute would as i say it serves other purposes of under other circumstances ok as i was just summary out there the term lawful permanent resident or l p r has many meanings the government never thought of it in the sense the b i a never thought of it in the sense doesn't mean that under you know these terms as they're defined in the act it doesn't mean that it does or with accept any jurisdiction anywhere where someone has thought of that it is since other than in the briefing in this case st as i said it's an unusual case i haven't found anything one way or the other on the ellis island usual is it i mean i'm not sure i understand the unusual nature of it so a young child comes to the united combination of him coming here at one and a half not adjusting with his mother because she understood what she was told i mean that he was automatically included in her application which you know as i explained in the brief that's an understandable misunderstand misunderstanding of the law because she was told he was including or application if you look at the application form the i forty five it specifically to list all of your children who are not born in the u s so she did list and so she thought that that would be enough and hence she done that had she known to follow a separate application then without filing anything else he would have become citizens when she naturalized everybody i mean even the i think to be ira agrees that head he just had with his mother as they believed he did that he would be a citizen so does that answer your question your honor that it's not unusual for people to have issues with law enforcement where they're not in that then you're asking us to decide is whether the waiver was correctly denied yes on legal grounds but you are not challenging the motion to reconsider you want to reach the underlying question of whether the waiver was correct or decided well yes we are we are asking the court to review the denial of the motion to reconsider because the arguments were plainly presented in the motion to reconsider suppose suppose we do that when we get to the waiver question what you want to do well i think the decision of the board has to be vacated and we have jurisdiction to do that returned to them with appropriate instructions and stick well the court does not have jurisdiction to review discretionary determinations however this court decided in gene because all as the questions you know the question of whether the standards applied or alter a virus that's a legal question that the court can review  now there's also there's not a lot of case law dealing with your own and see waivers ok so what exactly do you want us to do i understand what kind of on the they are it's what you want to say that he's  here what what specific relief are you seeking from this court well that would if he's a citizen in the prince of the removal proceedings should be terminated i mean just outright terminate determination there's not a lot of case law on this but the th circuit held that it is an error of law for the board not to consider a factor of hardship that was specifically presented and that's the  by will decision what is the difference between saying that the board made a discretionary mistake and the board failed to consider a piece of evidence in making its discretionary decision the otherwise and public interest now in this case neither the judge nor the board ever thought about humanitarian even know that was repeatedly emphasized that you're sending this guy who never spoke romanian in his life back to a country you know where he doesn't speak the language basically he's there and his family is he's having to support failure to consider one of those factors and then they also misapply and before i get any further i need to mention that last friday november the st and as i said there's not a whole lot of cases on to on ninety minutes trade or tradition  i'm wrong now where you were busted in the court right now and you didn't say i have a brand new case i'm going to bring up i don't want to surprise you coke opposing counsel ok well you could submit your case in the twenty court my name is ashley martin and i represent the united states attorney general in this matter your honour's an individual major right citizenship only in strict compliance with the acts of congress here failed to show that he acquired lawful permanent residence prior to the age of eighteen and for that reason the court should deny his st petition for review the court should dismiss the nd petition purview because the court lacks jurisdiction to review the agency's discretionary denial of the waiver application should we but we should so a dismissal is the right route for the nd one it fred not denying because it's  the discretionary factors in this case and the court lacks jurisdiction to do that and we should just pierce through to what it's actually asking for is that i've ever just trying to do this is a puzzling situation of whether it would be if we were to win and i'm not foreshadowing whether it's dismissed or denied this is a little bit differently praised in the way that it's pled well your honor the nd petition for a view does also challenge the  petition in part because there was no abuse of discretion with regards to recognizing that the motion to reconsider merely repeated arguments already raised before the board and the court should otherwise  miss that nd petition in part because it does like jurisdiction to review the agency's discretionary wing the ok so we wouldn't under your theory that and this is what i was asking opposing counsel exactly what relief is sought in your theory you would like us to deny the petition the st petition because it's not demonstrated that he was lawfully admitted for permanent residence correct on the motion to reconsider a ship or motion for reconsideration and dismiss him part on the whatever remains correct ok i don't understand how you deny him part and here's why if the question is did the board abuse its discretion and in order to figure out the answer to that i look at this memorandum the brief the mr stossel filed in front of the board it's all about you should agree to my way for my waiver grama waiver for all the reasons the counsel passionately explained to us he has an argument about the family separation and the factors that were considered please consider these include my waiver and so in determining whether there was an abus agency to take a look at the disk at the discretionary factors again and the argument on review is really that well the board didn't give enough weight to the positive factors and give too much weight to the negative and so i think for that reason the understanding in the past is that this court when presented with a motion to reopen or a motion to reconsider that raises is substantive issue over which the court lacks jurisdiction the court in the these we've discussed what relief you're seeking or that you think should be denied to do you want to address anything further or do you want to stand on your briefs and your honor i would like to point out for the court implementing regulation at eight c f r section twenty nine dollars it's clear that congress contemplated that refugees would be admitted conditionally for one year and that at the end of that year they would then be considered for lawful permanent resident status essentially the inspection for lawful permanent resident status is deferred by one year when someone is admitted to the united states as a refugee so it's clear there that that these two statuses are not one and the same and the board reiterated that in its decision a matter of t k and fact the board expressly referred to refugee status as being in permanence and conditional in nature that's quite different from l p r status which does not have a temporal indicates as opposing counsel indicated courts should start with the statute is there whether it affords chevron deference or skidmore deference to the board's interpretation of citizens ship saturates in this case because the language of the relevant statute here it is so clear it uses the term lawful admission for permanent residents that is a term of art that is defined in the i an egg and as the court i decided in the end it's martinez decision the term lawful admission for permanent residence refers to one of two things it's either admission at the border and permanent residence status or it's a subsequent post entry and just meant to lawful permanent resident status neither of those situations it occurred here was in the stasi was admitted at the border as a refugee not as an l p r and he did later apply to become a lawful permanent resident when he was twenty years old but that now if the board creates well actually it wasn't or was the attorney general the attorney general in matter of gene about fifteen years ago or so created a heightened standard for the exercise of discretion in the case of someone convicted of a violent and dangerous crime in that case this gene who is a fairly recent arrival had been convicted of manslaughter killing a thousand month old child that was left in our care and she had been sentenced to like six years in prison the attorney general held that in a case involving those violent and dangerous crimes that a heightened standard should be applied in that such that the waiver should only be granted in the presence of exceptional and extremely unusual circumstances now  in this case there is no violence or dangerous crime so the whole heightened scenario that was set forth in a matter of gene shouldn't even be applied here and yet here we have someone with no bollinger dangerous crimes and the court is completely refusing to consider i mean the board was completely refusing to consider the humanitarian issues that were presented and stressed i'll address this in the twenty eight j letter but the recent decision came out on friday basically said that hardship to the applicant themselves is a legitimate concern in determining whether someone has the exceptional and extremely unusual you know hardships they found that even with that he didn't need it  it is a factor and it's a factor that was never considered here and so i to me that's an error of law but it i understand it's completely question of how the court wants to characterize