five in april of two thousand and one he adjusted status to lawful permanent resident based upon marriage who is a u s citizen wife in august of two thousand and two he was convicted in united states district court one count of conspiracy to fraudulently use credit cards which was a felony he was sentenced to three years probation seventy three thousand dollars in restitution he completed both of those items successfully and had never been has never been in trouble since two thousand and record or not but i believe he applied for citizenship and that ultimately i don't i don't think it immediately triggered it but i think that ultimately triggered it although i do see in many cases absolutely nothing triggering i do you i don't know if they just if i runs background checks routinely through the federal system to find these old convictions and then bring them up thirteen years later even though the person's been living normally or not but i see it both with a trigger and without any known trigger so we c sentence fully no issues march of twenty fifteen notice to appear that he was an aggravated felon for committing a fraud crime in which the loss was ten thousand dollars or more he was also charged for being convicted of a crime involving moral turpitude within five years of being admitted as a lawful permanent resident he went before the immigration court he presented a couple different offenses one was a standalone to one to age waiver which was preacher method by the immigration judge one was withholding of removal based upon the particular social group of wealthy americans and hasn't been recognized as a social group by the ages right no that's correct yeah and he also presented the defense of protection of the convention against torture all of those were denied he appealed all those to the board and the board issued visa it was based upon his marriage to a us citizen back in two thousand and one and that relationship no longer exists so he had no he would love to but he had no basis he would have to have a us citizen lawful permanent resident wife you would have to other and he his mom is a lawful parent resident eighty eight years old so technically she could apply for a visa for him even but last time i looked at the visa bulletin i think it's like a seven year wait or something like that so twenty fifteen plus seven years would be when he could have a visa available to apply for this waiver so the time doesn't work out sometimes too so we effectively lost his old p r status because of those two words probably would have made it he would remain to be a  lawful permanent resident as long as he there are all kinds of requirements i wasn't representing him back them so i don't know if he had a conditional green card and he removed the conditions became a full green card holder or whether he just started out with a full green card at that point but is long they didn't find the marriage was fraudulent and that was never alleged or anything like that then though he even if he gets divorced he retains his lawful permanent resident status but he loses it now be because of the rule well because of the removal proceedings and i think technically he there loses it when the board issues its final decision or he loses it when he's actually removed from the country i don't remember which one actually triggers the but his application would likely be denied because he doesn't have the qualifying factor anymore if you're outside of the united states you just have to file for the twelve page waiver if you're returning lawful permanent resident that's correct so the analogy that i would use would be you have mr c and then his twin and let's assume that they've done everything on the exact same timeline and i practice just in this area so this is how i see this come up the most ok mr super side is in the united states he never thought this conviction was going to trigger any sort of immigration consequences thirteen years later oh hey you're an aggravated felon mandatory detention reduced defenses a deportation gets the worst of those fifteen years qualifying feature of his own p r is now gone but he still retains he still retains a status but he can't reapply for lawful permanent residence based upon that relationship after the divorce the legal basis is gone let's say his can't be removed he can't be removed because even though he's now divorce still that's correct yeah and let's say his twin exact same situation got divorced everything happened the exact same but this twin and this is how i most often see this arises  decide to go on a vacation to jamaica goes to jamaica has a great two weeks flies back into the us and that's the triggering event custom border protections as we ran a background check on you coming back in you  status they don't need to file a visa doesn't matter whether they are married unmarried at that point they can just file a two one two age waiver and have the juda gated by an immigration judge and if granted they're admitting the united states and retain their lawful permanent resident status they completely avoid having to reapply for the green card or a visa by going on vacation and coming back and that's how they get discovered versus someone you know thirteen years after his conviction and going that's the respondent argues that it's impossible and that's why the immigration of preacherman did the application for the two into each waiver legally speaking it may or may not be impossible to apply without a removal proceedings you're treated differently because you're in it miserable so you're not in the united states versus removable inadmissible you're running up against the border and bouncing off of it removable they're trying to push you out of the country so that little distinction right there which doesn't seem exactly fair can be the difference between someone like this who very likely would have been granted the the two hundred two age waiver if he was just married to a different us citizen or the same us citizen or had a twenty two year old child who would sponsor him as an immediate relative likely would be granted the waiver and be fine and live the rest of his life as a as a lawful person here in the united states or would have been fine if he would have gone on vacation and came back and got caught at the border and then you could just applies a real risk that your client would not get a new adjustment of status i'm sorry there's a real risk though because he has to apply for adjustment of status again there's a risk he won't get it i wouldn't say that legally speaking the two into each waiver has more strict requirements than a adjustment of status application so if you if you would be granted the waiver than it would you could logically conclude he would have been granted the readjustment status and ivory adjusted  status for lawful permanent residents who've been convicted of aggravated felony is before i mean it's certainly possible to do and i wouldn't consider a rare thing especially in a case like this where you've got a guy who's a very low level member of a retail  didn't just file for just business because he doesn't have he doesn't have anyone to apply for a visa for him his wife applied for the visa to get him lawful permanent status to begin with and that's the only person in his life that meets the requirements of an immediate relative to apply for him and that relationship no longer exists so it's sort of like pulling the rug out the just no legal basis at that point for him to reapply for a visa and like i said technically his mom an eighty year old lawful permanent resident could apply for him but the way to what question of our constitutional claim he raises in conjunction with the now is applications for holding removal and capitation the second issue brings before this court whether or not the board warrants deference on its interpretation of section two twelve age the board has a publicist cision matter of rebus any regulation at twelve forty five point one f where is interpreted to twelve h as requiring for an ailing within the united states who is in removal proceedings to have an adjustment of status application before having access to this waiver what's the point it's obvious that there's a big difference between somebody coming back into the united states and some of these just here changes to the immigration act so in one thousand nine hundred congress changed the wording of to twelve age to state that it's only available to an applicant for a visa admission or adjustment of status subsequently arrear did away with  flu doctrine which was about physical entry as united states changing how an individual is placed into proceedings i was back in the old regime of exclusion and deportation proceedings on one hand and the other there is one proceeding removal and the difference being that while they're not dealing seeking admission we're not the government seeking to deport that alien and those are the two different statutory regimes at play now so with the new definition the board found there is no more room for allowing someone to p check and they can find a criminal conviction under the new regime after rear an eleven zero one a forty three c v a returning offer resin can be treated as napkin for admission because of certain qualifying criminal offenses that point they can  see to twelve h waiver because their criminal activity has come to the government's attention and they are seeking at the border to be readmitted will follow you if you just tell me why it is that you have this additional requirement for someone who's still in the united states to apply for adjustment of status if you don't have it for somebody who's coming into the united states what's the reason for there must be some reason they changed the stature what is it that changes statute because of the old fluty doctrine and how it was premised on physical entry states now it turns on either the government seeking to deport someone or the alien seeking admission to the united states which are two different things so in this case the government sought to deport mr superset he was not seeking admission yet states but he it congress allows him to seek admission through application of a or adjustment status application and that's what you'll see in these published decisions that at that why that's the question is why why is there the additional requirement of having to apply for adjustment of status for an l p r has already gotten l p r designation who stays in the united states and you find a criminal conviction but you don't have that requirement for someone coming in all you have is a two twelve age requirement why is that not important for someone coming into the united states but it is for someone who's already here with his status already adjusted ok so this is actually a equal protection argument why is there a rational well so eleventh circuit in reverse which was a publish decision affirming this published board decision they said there are five rational basis for this policy first congress might have wanted to ensure that dangerous people those convicted of crimes remain outside united states while their applications were discretionary really if this to twelve h waiver are considered a second rational basis that's the people who are outside of the united states people seeking entry at a point of entry yes because it doesn't apply to the first  conviction to the attention of the government fly under the radar until they want something from the government in this case it was an application for citizenship then they bring this conviction to the government's attention and this is the rational basis here is that they don't want to encourage people to just fly under the radar after get convicted of a serious crime doesn't really apply the second twin who was here in the united states went out on vacation and then again but that was the first rational basis where he is seeking admission at the entry he was already here well ok he was already here flying under the radar you know this is like there used to be a business in the old days before you guys were born where and maybe even before i was born but where they would set up mexican divorces and you'd fly down a vacation in mexico and get divorced maybe they want to set up sort of you know go to go to jamaica and come back in so that you can avoid the internal reporting requirement well that that is one of the russian bases again that the there's with their conviction so either way you're bringing your conviction to the attention of the government instead of simply flying under the radar and this seems to fit what congress wanted with this waiver but what you're doing that in the same you know the second one is doing that here  ever got brought to the attention of the government it was brought to the attention of the government there's no functional distinction between going out and coming to the border and they pull it up or they pull it up and then they say hey you've done this i mean either way the government's informed whether because he's trying to come in what do you think they get on the ones that neda's you know what if they get through the border on natives again they're still flying out of the border they haven't brought it to anybody's attention they haven't but the governments discovered it at the border or the government's discovered it when they went out and did a sweep or whatever that they either way they have to seek admission at that point they have to request from the government this admission which is eleven thirty two which is a different grounds from his ability which is required for adjustment status and that seems to what congress intended with this language by specifically adding in admission fees or just missed out of the only ways this is waivers available to an individual individual that's three so the aliens merit to enter the country fifth congress might want to punish the current residents who repaid that status with a life of crime and to require them to self deport before the general considers a request for a hardship waiver rational basis being that you have a serious crime a conviction rate a felony that individual goes outside united states and then they could be kept outside of the united states unless they get to slavery or if they manage to fly under the radar and avoid i'll leave the country and try to get back in why would you do that well because eventually if you want any kind of benefit in this case naturalization application you have to get that connection away mean i read over the five rational basis is as well to me they mostly sound pretextual i mean the real difference here is that you're in the country or you're out of the country the guy that goes on vacation and comes back and gets caught at the border they don't send him back to jamaica and wait for some sort of application to be processed or the waiver to be processed or whatever else typically they'll parole them into the country which is technically not admission so technically you're not in the country or in a bubble within the country but once again you're in the country so this whole you know some of these rational basis suggestions where oh the person has to leave and stay outside and wait for to get permission to come back and that's not really what happens person goes on vacation and come back and stop at the border they get placed in removal proceedings just like mister they have to go for an immigration judge just like mr they have to submit a bunch of paperwork and documentation because it wouldn't just be divorce i mean it could be death or things completely out of your control that could all of sudden change one person th a difference one person goes on vacation and gets caught and one person happens to get caught here and there's this whole extra very big expensive additional requirement that doesn't add anything on top of the two men to age like i did mention before it's not more difficult to get adjustment status is more difficult to have a waiver approved but the equal protection argument is between somebody in your client's circumstances and somebody who has twins so called twin brother is goes out comes back what about the person who's from jamaica who simply coming in is that well they haven't been afforded lawful permanent resident right so you could apply different standards to that person they've never been in the united states before they've never lived here permanently before but i mean they would do the process there is different they apply for a visa through the national visa center but they're not involved in your