well here the first case on the calendar which is hernandez versus moscow hernandez versus sessions appeals finding that they are removable from the united states for having engaged in or for finding that the government has met its burden of proof and demonstrating that the engaged in less than bona fide marriages and denying their waiver humanitarian waiver of removal and we've raised three issues in our brief which i think the court should reverse the board's decision the first that we raise is that the agency applied an incorrect burden of proof in determining that the government met their burden of proof in establishing the petitioners remove ability the burden of proof in this case which the government admits is clear and convincing evidence the immigration judge who made the initial decision never used the phrase clear and convincing evidence in his decision he never even mentioned what the burden of proof is at all and the little bit of language that is in the opinion in where he decides why he thinks the government's evidence was better than the petitioners evidence is language that mostly tracks the lower preponderance of evidence standard so the fact that the judge never said what he thought the standard was when coupled with the fact that the language that he did use to describe why he thought the government met its burden of proof most closely resembles the preponderance standard rather than the correct clear and convincing standard demonstrates that the judge did not apply the correct standard or at the very least the record doesn't show that he  sure so that would be on page three forty one of the record i'm sorry page three hundred thirty nine of the record where he acknowledged that the petitioners presented significant evidence in support of their position that the government had not met its burden of proof but the judge said that the petitioners evidence didn't outweigh the government's evidence we were it is a classic preponderance standard where you sort of way which side is slightly better than the other and he said that our evidence didn't you know sort of outweigh theirs but that's not enough for them to meet the burden of proof and if it's just you know fifty one percent them forty nine percent of us we win because the burden of proof on them is clear if you wanted some cases where fifty one forty nine forty nine fifty one yes i mean we certainly don't disagree that the government they have a case but basically what we're saying is their case is not enough to meet the clear and convincing standard and that's what the congress specifically wrote into the law and with supreme court said a long time ago and it's just not enough evidence to strip the petitioners of their long term lawful permanent resident status yeah they did articulate the correct standard on appeal correct yes well they noted that at the merits hearing petitioners counsel me said the correct standard not the judge i think i think the problem with the fact that the board mentioned it is the board didn't basically say you know we admit that the judge didn't apply the right standard but we think it does meet the clear and convincing standard and this is why the judge just wrote the b i a just wrote affirmed the judge's decision saying we agree with the judge's weighing of evidence we agree with the judge reasoning so we affirm his finding of removal so the fact the fact that they were essentially smart enough to put that phrase in their decision doesn't change the fact that they affirmed the same analysis of the judge which was based on the wrong standard so that's why we think that you know the fact that the board was sort of smart enough to put that in there is not enough to show that the agency itself as a whole applied the actual correct standard what are your other grounds well talk sure are the two other grounds would be the fact that regardless of whether the b i a and the judge applied the right standard that no rational trier of fact would be able to find that this record demonstrates for movability by clear convincing evidence because the judge found and the board and the board affirmed that the petitioners presented substantial credible evidence to rebut the government's contention that their marriage was not bona fide which is  namely testimony from the female petitioners exp ause which is in the record at page forty five to five sixteen testimony of a mutual friend you may not have assumed that it was a sham marriage without effect as a general matter that is correct but i think if you look at the testimony in this case basically what he said is we started the marriage and basically sort of i admit that i was drinking too much and my excessive drinking pushed the monica basically away from me and in retrospect i'm looking back at sort of what happened with the relationship my sort of drinking too much was what sort of dissolve the marriage pushed her away from me and that's why she strayed from me and that's why she eventually found her new spouse which is the other petitioner mr malvo seemed to be having a parallel experience with his yes and there was the testimony of of a mutual friend as well i mean i think that's not uncommon in you know it's an unfortunate fact of american society that lots of marriages end in divorce the petitioners admit that they lived in the same large apartment complex at the time they were married to their respective spouses that there were parties that they had mutual friends at in the building and they sort of i mean it's not uncommon when you're breaking down a relationship with your spouse because they're abusing substances you have a friend who you've met  building and you just sort of spark up a relationship that's sort of a pretty sort of common thing and i think if i certainly understand why there would be some suspicion but i think if you if you're if you remove the immigration aspect of it this isn't really that uncommon of something that would happen in america today so when you have credible testimony which is the expo's the mutual friend and then there's also more than one hundred pages of joint documents showing that each of the petitioners did live with their respective spouses for at least a considerable period of time before the marriage started breaking down we just think that no rational trier of fact  could say that the record shows by clear and convincing evidence that the marriages were fake if this was a preponderance case i think it be a different story but that's not the standard in this case by fully relevant i'd like to know the the the the oldest daughter is no eighteen yes the younger daughter's oh i believe she's sixteen and the oldest daughter she graduated from high school she no it's many yes and it and she's going to college i know they're both pretty successful in soccer and i haven't spoken to recently but i know that they had been discussing she was going to be getting a soccer scholarship to go to go to university and i think that's sort of moves into the last part of the case which were which was the  waiver which at the first hearing the judge said i think this is a close case but i think the negative equities are stronger than the positive equities and the board affirmatively have jurisdiction to review that i think you have jurisdiction to review the legal question as to whether th a legal question as to whether the agency follow the law of the case when adjudicating the waiver because during the first set of hearings the judge said the board affirmed the government never contested that this was a close case in terms of equities then  no new evidence of negative equities but there is significant evidence of new positive equities namely the fact that the eldest daughter as essentially blames herself for her parents being deported because it's the fact of her birth which on which makes the government think the marriage the marriages were fraudulent and that she's had to go into therapy and you know have had suicidal thoughts because of what's going on with her parents the fact that it is monsoon her father at a time good morning may please the court on behalf of the attorney general with respect to the burden admittedly the immigration judge decision doesn't say exactly what burden was applied but the argument from the petitioner still fails for a couple of reasons if we look at the transcript there is no confusion and no debate as to what burden was going to be applied petitioners counsel mentioned clear and convincing evidence four times and from the immigration judge nobody quibbled with that nobody debated it and it moved on from there second end to the issue this is not a situation where the board said i we adopted affirm the immigration judge's decision and leave this court to wander the record looking for what the basis is the court i'm sorry the board in this case adopted in a firm but then went further and provided its own comments and those comments clearly said that the evidence smet the clear and convincing evidence and so this court under its own precedent and wallah has to look at the immigration judge decision as augmented by the board and that is the agency's decision clear and convincing evidence was satisfied now the immigration judges use of the word outweighs or in the totality are taken out of context here the american judge in that part of decision had already said in the first sentence of that paragraph that s s had met its bird but it had been satisfied its burden then went on to look at the countervailing evidence offered by the petitioners and simply said that the testimony of the prior spouse and the ever there have been it's offered didn't unseat or outweigh that offered by the department so there's really not an issue with respect to whether the proper burden was applied moving under movability the petitioners want to focus on the exception of their marriage and treat this as a traditional marriage fraud case but that's not the way the notice to appear allege that nor is it the way the agency treated this case the notices to appear alleged that there was misrepresentation of a material fact at the time that these aliens submitted their applications or their protections i should say to remove the conditions on their residency and that misrepresentation was that they were then at that time living in genuine bona fide marriages with their first respective spouses the i j a focused on that part and so did the board with respect to whether the marriage was going to fight they had been truthful what would have happened but they could have applied for waivers of if the marriages were dissolve and at the time they needed to apply for the removal of conditions on their residency they both could have applied for waivers under section two sixteen of being in genuine marriage the time they were in but instead they chose to live and that's what trip them up there are so if you look at his mother's one thousand nine hundred sixty judge would matter if if each of them contracted a marriage with an american citizen was at the time of marriage genuine your yes absolutely marriages we don't know for for a fact but the marriages could have been genuine and inception and then it dissolved by the time they went through the conditions on their residency then they could have sought waivers under section two sixteen to not being valid marriage anymore but they didn't do that instead they chose to mislead and lie about a material fact when applying to the d h us with your kind of close to saying you know that happy marriage is not a marriage and most of them are well like i said your honor the way that the immigration code is written and i didn't and i know some marriages are unhappy and they still stick it out with a divorce at the time of their applications they were divorced within i believe three or four months or five months they know they were not is and it would be no less legitimate just means that there's there's a reason why the two parties are not getting along and so they're not living the there's a distinction when it comes to immigration on a because the path to lawful permanent residency and eventually citizenship in this situation is based on the marriage so the marriage at the time you have when you say i'm still living in a genuine marriage you have to be living in the general marriage or you just simply apply for the waiver you can't just  that's why i asked you i don't understand you mean if the if they're married but they're not divorced they could still file a joint tax return they could still do lots of things as spouses they can still inherit each other's estate at the manically so i divorce but not but doesn't deal agenda mises of a marriage appropriately so solemn lies or with four appropriate purposes at the time it was entered but the way congress has written the code is written section two sixteen is both couples must appear and show that the marriage that they are still living in is genuine viable and ongoing when they apply to have the petitions on their petitions on their conditional residence remote they don't if they are not but then your honor there would be no need for the good faith whenever i try to argue with you and trying to understand ok so take it just slow down a little bit so if so if they don't like each other but they're still married it's it's not ongoing is that your view it's it's the nature of the marriage is the critical key in section two sixteen while the nature of the marriage is very vital like marriage counseling with an immigration twist in an odd way around but i think the point that really needs to be hammered home is that if your marriage is dissolving or falling apart and your other spouse will not appear with you for that interview or will not submit a longer support your petition to have the conditions removed you can apply for a waiver i got and that's what i think that's what points back towards the marriage which you say about that marriage has to be genuine i after i answer me a couple more questions absolutely does do you to do you take the position that that the legitimacy of the marriage or that the record in any event supports a finding out that the marriage was not legitimate at the time the marriages were not legitimate the time their ridgeley entered into and what is there a finding to that effect by the immigration judge there is not a finding that effect because that's not the way the case was alleged right so it isn't the government's view that we should look at this in the context of the misrepresentations that occurred at the time of the applications of the waiver exactly right and that's and that's the charge that was alleged ok and you know the petitioners have to face that it's not inception and that's what they want to focus on well but there is a law issue there right because the third circuit's taken a different view of the statute has it has but that issue was not raised before the lower court before the board or before there was never a challenge to the statute a these petitioners of simply focused on a factual argument they can't now say oh we have a legal issue we want to stand by if you want to just a legal issue we have to send it back ok so if we if we say that there is a legal issue there you would say that the appropriate hundred seventy through nine hundred ninety nine and why is that important because those are critically important dates because those are the exact same dates that mr moussa was as he was living at that address and so that's an indication that petitioners were living together nearly two years before they told the d h as they were still living in genuine marriages with their prior spouses the only explanation was in moscow offered was that while i was receiving mail still at the washington avenue address well that explanation fell apart immediately because then that would have been the address that appeared on your petition to remove conditions on residency not a p o box somewhere in bridgeport and it gets worse though because although she always said she was living in apartment two way the lease she offered such a living apartment b six and worse than one thousand nine hundred six w two forms she offered said she lived in apartment three b which just happened to be mr mas apartment that he shared with ms hernandez so again the evidence is pointing that all the way back in one thousand nine hundred six perhaps these people were living together not with their actual spouses and mr mazo actually only added fuel to the fire when he testified  that their relationship picked up speed after they discovered the child was there as well they didn't the marriages for american citizens took place late in ninety five ninety five years early ninety six so you're saying that the this in this in these applications for naturalization that are offered in independent applications of the need and the leases referred to two different properties that these petitions live at the strange thing about the leases as they're both exactly the same a great down to the same spelling errors right down to the same notary and you add to that the fact that mr mouser put his inferences drawn from that that these was an orchestrated effort to make this look like these people were living in separate homes would separate spouses but that was a lie a misrepresentation whether the marriages original were good in the beginning and whether they just following a little part it's still a lot you're not living with people misrepresentations what the statute calls for i will say in my closing seconds with respect to the waiver application the words close call don't really qualify as a law of the case the law of the case was that the discretionary determination was not in your favor that's the law of the case nothing unseeded that and what this really is is dressing up a discretionary attack in statutory guard sub's any further questions up include the attorney general's presentation come so we are good but we definitely disagree with the government when they say this is in a marriage fraud case this is a marriage fraud case the only ground of remove ability in this case is that the petitioners were in miss record misrepresented themselves as being a bona fide marriages at the time of adjustment of status because the only the only charge of removal is that they were inadmissible at the time of adjustment so what we've been arguing since the beginning of the case is that all these misstatements and things that the seventy one and at the end four hundred stage because the charges you were inadmissible at the time of adjustment those post adjustment facts are only relevant to the extent that they demonstrate or can prove that at the time of adjustment the marriage wasn't bona fide and that's what we've been arguing from the big inning and basically what we've been saying is look the marriages fell apart we don't dispute that but it doesn't mean that the marriages weren't real at the beginning and the immigration theory at the beginning the question is when the real at the time of justin's sure and the government in the in the government has not alleged the immigration judge didn't find in the board never found a misrepresentation made before adjustment hor during the adjustment process the only misstatements that they're pointing to are stuff that was made beyond adjustment when they had already adjusted status so misstatements at the removal of conditions stage they don't make you not admissible at the time of adjustment by itself they only make you inadmissible the time of the adjustment if you make the leap of saying these post adjustment misstatements make us reevaluating what we knew at the time of adjustment so the after admission and granting of status with conditions doesn't doesn't pursue protg or serve as an adequate growth remove all but just only as proof of the fact that you were lying earlier that's in congress's wisdom they decided to write the statute that was my mind with consistency but i have to think about it because it really really does turn on what the operative time for analysis the legitimacy of