i want to understand at this point what is it but the government has it related to that we don't need to talk about it or what one of the points where there's no longer a dispute well your honor in this case the government has continuously argued that eight to twelve h was required because petitioners a crime was a cia empty and that it required a heightened standard in the government's twenty eight j letter they finally stated that because of the intervening case law brandon v holder it was not a c i m and thus no waiver was required which leads us to my twenty eight j letter hours in which i said that the issue them before the court is whether the petitioner ever even had an opportunity to file a straight out forty five adjustment application which i do not know now because the two twelve the two twelve h waiver he did not find extreme and unusual hardship even in his discretion he would have denied that application and that application your honor was referring to the two twelve h application which is filed on the six a one day he never made any express finding that he would deny a four eighty five application which didn't require a waiver and in fact there was no determination at all that a forty five application though when when like when the attorney general or the agency has discretion do we have jurisdiction here that your honor he didn't exercise discretion here this is the case where they did not exercise discretion because he didn't have the correct application in order to exercise discretion there's a b i a published opinion matter of a right that is the controlling opinion that opinion presumes that relief is warranted what the government had to steal was phyla to twelve  before the b i a because now we are talking about today today we're talking about that the case needs to be remanded because a four eighty five application without the requirement of the heightened standard was before the judge and we're arguing and  said it's not before us is that it is before before is not because i have argued yes your honor because i've consistently argued that no to twelve h waiver was required and no heightened standard was required this should have been just adjudicated as a straight out forty five i respect that i get your point about some of what the government has conceded makes that the case but what i'm struggling with is the fact that you seem to be saying that the proper vehicle here is a forty five that was apparently not filed by let me put this way i don't know why that was filed with the i j and i don't think it was before the b i a right your honor both applications were in front of the i j a and in front of the b i a they go together basically in order to get their living or defy a rule on that the b i e found that he didn't meet his burden for the two twelve eight which now we're saying even required so our position is what we do with the four eighty five did they treat they treat the forum well to mentally get denied because you did what you just said a few minutes ago they hadn't filed it no they did for to twelve h is what now the government is saying was not even necessary to the difference between it's the case though i'm still struggling with the fact that we don't have a ruling on the four eighty five right well the judge said that basically what he said i'm going to deny the application so he ended up denying everything because he couldn't reach the second part so do we assume that he quietly ruled on the four eighty five as well order again then on consideration of all the factors both positive and negative this court finds the respondent does not deserve a grant of adjustment of status in the exercise of this court's discretion accordingly for that reason again the respondents application will be denied correct on it but he didn't evaluate he he denied the adjustment and i won't i will make another point and th well reasoned determination that the respondent did not meet his burden to establish warrants relief as a matter of discretion your honor again they did they did the discussion based on the two twelve h which does i do want to point them as well in this court's published opinion tours valdivieso v let's ok that went to whether it's a violent or dangerous crime and this court specifically stated that where the correct legal standards applied the court would not have jurisdiction however in this case the correct legal standard was not let me ask you this in exercising discretion on an application for adjustment of status what factors are important your hon had an adjustment application you start out with this presumption what does the i j a have to balance in order to say that the government has rebutted the presumption he has to balance all of his equities as well as all of the negative factors on the negative factors would be sort of the same things that the i j a identified here no your honor because in this case what the i g said was that he had to find exceptional and extremely unusual hardship so that was the bal is considered an adverse negative and there's a presumption to deny the case in the exercise of data that's the difference in presumptions right i think other than the difference in presumptions you're weighing the same factors you're weighing the same factors but you're giving different weight to them because of the presumption correct your honor that that i and my other argument your honor again this should not have been the discretionary factor should not have been exceptional and unusual thirty third point your honor is that there was extreme bias in this case by the immigration judge and if you look at the case the i g stood in moral judgment of petitioner the government counsel i prepared my case the government counsel prepare the a bit of advice listen to what a judge ask you think about it and then give us an answer you're just talking and talking you not listening to us what what case law what rule can  that it was improper now you are i'm staying i'm quoting miguel davis and the charles twenty two i in a decision thirteen sixty two b i a two thousand where the immigration judge cannot badger a client cannot stand in moral judgment of the petitioner and in this case if you look at the record he was acting as a prosecutor trying to poke holes even the b i a made a comment that his comment that you're a walking crime wave they took exception with that and i'm going to reserve if i may the rest of my time your honor for rebuttal thank good morning on a mere please the court dan goldin on behalf of the attorney general the government asked this court to dismiss the petition for a view the only only thing left before this court is the immigration judges discretionary denial of adjustment of status page seventeen thousand nine hundred twenty of the immigration judge decision immigration judges the immigration judge discusses the positive the negative factors and ultimately concludes that the negatives outweigh the positives that this individual does not a decision there are a few things that i would take exception with on behalf of government with with what counsel has said the standard for a waiver requires a certain hardship if the crime meets a certain standard it requires a heightened evaluation when you when you get to the discretionary decision after that positive versus negative your honor it's the it's the classic as was noted earlier it is the classic exercise of discretion and that's that you're centrally starting with a clean or slate you're on your starting starting with adjustment there's the immigration judge as a great job of talking about the posture of this case individual comes in if the individual is inadmissible then the individual needs a waiver depending on the nature of the crime the waiver may have to the individual may have to meet a different standard but then aside from all that you get back to the underlying discretionary determination when the positives in the negatives as to whether the a favorable exercise of discretion and a grant of adjustment that's what happened here petitioner is complaining that there's no presumption for the ex during the exercise of discretion portion  that there is no presumption in favor of the applicant and i don't mean to imply that your honor what i'm saying is the immigration judged in this case did exactly what the immigration judge was supposed to do which is starting with the  want is the presumption and what's the basis of the presumption in immigration she's alleged there's a presumption in her and her client's favor do you agree there is such a presumption but i don't i don't contest that you're on what on what is it based based on if if in this case to get down to this case if mr abbas was not inadmissible if you were add miscible then we would get to the straight question of does he deserve adjustment status in the exercise of discretion ok but in this case is there a presumption that applies based on a four eighty five situation in this case i don't think we get to that question here are because regularly practice in the immigration courts but you're talking about a situation where an individual would go in ad miscible as opposed to inadmissible be filing a forty five an application for adjustment of status and the immigration judge is going to balance the positives and the negatives to not answer my question there's been a statement that there is a presumption in favor presumably of the alien for in this situation i'm asking is that not regulation is based on a case is based on statute what's it based on i understand apologize you're right if i understand your question i believe that is correct i would want to double check that and that's just ok i personally think that if you think there is one you just don't know where it comes from i would want to double check that yes fighter but do you do you think there is one i think he's a junior i mean then that would be my understanding i would need to double check that your honor i don't know if there is  honor and where would you find it does not explicitly say that but it certainly doesn't explicitly say the opposite and i think in order to make the case the petitioner trying to make for the first time today not in a brief to the immigration court immigration judge does have a very thorough job here going through all of the different issues that were in front of the immigration court at that time and ultimately when we get towards the bottom of page seventeen pivots from talking about a waiver and says even if you didn't need that waiver now we're going to talk about adjustment of status positives versus negatives and the immigration judge ultimately reaches the conclusion that mr abbas doesn't merit a favorable exercise of discr a position that even though two twelve h is not before us now yes i'm amazed that you're saying that what the immigration judge says at the bottom of page seventeen top of page eighteen of the opinion that that applies equally to four eighty five is that right yesterday and that we are to assume that but for the failure to insert that terminology in there in that number that he has evaluated the adjustment of status request also under four eighty five and deny that based upon the criteria that the court set forth on seventeen and eighteen that right would just expand that a little bit seventeen eighteen nineteen and twenty year out of the decision goes on to talk about positives and negatives mr abbas gets the full consideration the immigration judge's decision if it had stopped at the bottom of page seventeen counsel would be exactly right and we'd be asking this court to remain the case but the immigration judge went on in the board similarly talks about the other issues that were before the board at the time and then pivots and says in the end we agree we adopt the immigration judge as well reasoned decision mr abbas is complaining that he never got an evaluation of his adjustment claim that ignores pages seven hundred eighteen one thousand and twenty of the immigration judge decision it ignores the board things about that but his mother having had cancer being in a very fragile mental condition being very dependent on who was a teenager when these things happen to came here ways eleven years old from egypt and the immigration judge says you know i know that they won't ever be able to meet again in egypt really be able previous disagreements about what the nature of this crime was easy any reason that the government wouldn't be willing to go to mediation and that's with this we have a very strong mediation program which the immigration services and i guess if our homeland security takes advantage of some regularity do you have any reason to think they wouldn't be willing to go to  mediation and talk more about what can be done with this mentally fragile mother who would never otherwise be able to see something your honor i can i can assure this court that this case has been fully vetted in terms of whether there's a possibility of an exercise of prosecutorial discretion if the court believes it would be appropriate to refer this case to mediation i can certainly take this case back to the department of homeland security but i don't i potentially colorable claim that could that this court could exercise your stiction over the record however tells a very different story there was one one intemperate remark as the board noted as as our brief noted  intemperate remark by the immigration judge i would urge this court to consider that remark in the context of what was going on in immigration court and in the totality of the circumstances for this case mr abbas came into immigration court and told an unbelievable story that's not my words it's not the immigration judges words it's mr abbas's words he says to the immigration judge and i know the story is hard to believe his counsel says pretty unbelievable and mr continues to push this on believable story he's questioned he's questioned on cross examination is he questioned by the immigration judge his testimony is done they start testimony by another witness the case has to be continued the continued proceedings three months later this immigration judge who petitioner would have you believe is so biased against mr abbas the immigration judge is asked to allow mr abbas to retake the stand to get a second bite at the apple to testify bottle just a second bite at the apple to testify over the government's objection the immigration judge allows that testimony and i would respectfully submit that any allegation of bias is overcome by the immigration judge allowing mr abbas to take the stand again and in fact mr abbas takes the stand and says yes that unbelievable story that i told you before was not true i came in and i lied to the i was afraid for various reasons but i lied to the tribunals the immigration judge as was noted earlier is not prohibited from asking questions in fact the irony suppose that the statute specifically allows for the immigration judge to ask questions and that's what this immigration judge did and there was one intemperate remarks but taken in the total context the total of the totality of the circumstances we would urge this court to reject that argument of bias and then  dismiss the petition for the other if i could return very brief you're on to your honor's question about the presumption i pod just didn't answer it mediately a little i'm a little taken aback because i have not seen that argument previously and before i can speak to it i would need to go check if the court wants the government to submit for the briefing on that matter i'd be happy to i apologize hearing it for the first time today i was not prepared to respond in the detail that i think this court deserves so my only question is that in our deliberations if there's a presumption we need to know if counsel has referred to one referred to a case i think it was a b i a case or something like that i'm not familiar with up to your question i don't think it was cited in the brief but i'm not sure and would be happy to submit for the briefing as as the court would request your honor and thank you that the case actually is the matter of r i it is the only published case on the be a forty four eighty five application and it states that where there are adverse factors present favorable factors will be considered as countervailing factors favorable exercise of discretion in some summing up your honor not only that matter of harare eight or eight i thirty thirteen i n n decision four ninety four hundred seventy that is the controlling case and that says that there's a presumption yes you are now here in this case the discretion that was afforded there is this matter of a right which is the controlling case there describe there's extreme because they the discretion that was determined was based on exceptional and unusual hardship that was the discretion that's when he considered all the factors in his discretion he denied it finding that he didn't meet the exceptional an statutorily the extreme an unusual hardship and in his discretion he wouldn't meet that burden so he did jump to that burden and that's how it is an immigration court thank you o