good morning your honor just my name is robert powell appearing on behalf of the petitioner mr perez and weak as i am here with my co counsel robert gibbs i would like to reserve about ten minutes of time by way of rebuttal first of all i'd like to explain make sure the court understands what is at stake in this case for mr perez and for thousands of other agricultural workers who are who went through that legalization program mr perez became a lawful permanent resident on december first ninety ninety that was done in accordance with the law that existed at that time he adjusted and became a permanent resident he was given a green card and told that he can live permanently in the united states now more than ten years later the government is telling him well that really on his equities his family and all of the ties that have developed in the last ten more than ten years conclude that the adjustment of status occurs at each of the two day well there are there are several different provisions in the immigration laws that talk about adjusting the status some of these statute talks in terms of adjustment to permanent resident status i don't think it actually uses the term quote adjustment of status that term adjustment of status if you look at that as a term of art that term adjustment of status is used as far as i know only in section two forty five not in the talking word adjustment and your argument must mean something different it doesn't necessarily mean adjustment of status so the it is that right when when you would just under that stop program you  temporary status to permanent status but really there are two possibilities are there not you could be going through an adjustment of status at the time you get your temper and you might also welch i think i the question refers to also or in addition to or either have an adjustment of status on the two year anniversary when you were entitled all other things being equal that talks about permanent residence and it uses these words again it says shall i just the state is any alien and then it goes on to say anything permanent residence so two adjustments in that process there's an adjustment from non non status to temporary status and there's a leader adjustment from temporary status to permanent status may i ask the question could i could i just make one well our view is that you know the court of course can interpret the statutes of course possibly do that under the ordinary and traditional tools of statutory interpretation we submit that the answer in this case is clear adjustment from temporary to permanent status because the grounds in this villany did not apply at that time we can't later come back and say oh we're going to deport you now because you were in admissible at that time but if we're talking about the date permanent status that was the second of the two possibilities don't we have a chance at that point to do analyze whether or not as of that moment was there something that would have rendered the salient that's correct and that the terminations is discretionary that's very important that that determination as to whether or not we should block you or her from getting permanent status is a discretionary determination there's a which may well have happened in this case mr is whether he's the portable under a one a he missed really or whether he's deportable for the underlying act and that's important if you look at what happened in this particular case in this way he was charged with being a portable for the underlying act and and with this didn't come to light later is that correct that's not necessarily correct it may well have been it was a discretionary determination it may well be that an immigration officer encountered him while he was in jail made a discretionary determination will let this person go it's not a serious offense will let him go and adjust the status if that's clearly consistent with the law in may well if sized earlier in your argument that the government waited ten years for it so we have a new attorney general now this new attorney general says well you know we don't like the fact that you got your status back then and so we're going to even though that was completely lawful we're going to change your mind and now if you never got the legal status i pricked my original question he was is it sort of roughly equivalent to restrict cato or this person got his status by fraud or mistake and therefore we're going to treat him as if he was never a permanent resident he can be deported for leave rather found a different ground of deportation but what you can't do is go back and say this person is  believe not apply according to that reasoning the next thing we can come back and say well we're going to change your mind and take that status away from you because you were in the midst of all time of adjustment status even though the grounds do not apply we're still going to say that your deportable even though you didn't do anything wrong we're going to that in this in the saw agricultural case mr perez is next door neighbor just like him was the saw that approved never committed a crime he had just status and becomes a permanent resident well when he adjusted he was inadmissible because he did not have a labor certification section to twelve in five for example requires you to have a labor certification in order to adjust status well according to the reason the next day we can come back and say oh you know you don't have you commit a crime or legislative history behind this office but that wasn't the reason that congress passed that the recognition of the fact that a number of agricultural workers were here in the united states illegally that either entered without inspection they didn't have  labor permit and that in essence it was an act if you will of the legislative grades to allow them to adjust because it was important to have a ready supply of farm workers and if that's true then why should we extend that act of grace to include people who have always been eligible those who commit serious crimes or drug trafficking well this you just apply the law the way it's written that person even though that person committed and i was inadmissible the law does not require that that person be admissible when he gets permanent residence that if there were other grounds understood i guess my question is why can't congress the singlish between different groups of aliens that were perfectly willing to look the other way if they came across the rio grande without action but we're not going to look the other way if they commit serious crimes here and we're not going to give them a safe harbor or saw  reason congress congress did that and in this particular case it said if you commit certain wealthy certain types of crimes very serious ones if you commit them then you're portable you're not eligible for the program but there are other crimes that are grounds are less serious and we give the attorney general discretion if the attorney general decides that this is serious no offense we can block you from getting permanent resident status but the statute congress clearly says you do not have to meet those grounds  two things that congress was doing the laying for whatever reason the right of the saw applicant an agricultural worker to apply for family members once you become a permanent resident you can apply for family members or a two year waiting period and also the time that turnstile at the time that he becomes a permanent resident the panel in effect is saying well right now ten years later we're going to make you recreate actively go back and that you for those admissibility criteria when they really did not apply when you first came through when you came through in the first place and they said look you work at mit so we stop you right there and then when you buy operational because of this peculiar statute that's operates by a law and not by executive decision you can't use that's i think very important for the court to understand is that he knows lopez the board of immigration appeals recognized even though this person is seeking admission recognised so that he is a permanent resident he automatically adjusted even though th admissibility did not apply he lawfully became a permanent resident even though he's in the exclusion proceedings will still treat him as a permanent resident that's the same thing that should happen here even though east deportable for some other offense he still needs to be treated as a permanent resident and eligible for section two twelve c relief please the court my name is francis so your phrase your i'm here on behalf of the respondent the attorney general for me i'd like to begin by responding to the first statement that counsel made which is that because actually i think it goes to the heart of this case he said that the  the agency is going back to its reaching back in this case well it isn't it happens all the time that an individual has committed a crime which doesn't come to the agency's attention for a long time sometimes years that's exactly what happened here  created two step process in the sauce statute an individual could apply for temporary residence status while he's overseas the agency would have no opportunity whatsoever to do an investigation and  well the end of the two years and that leads to another point they were automatic has been used in this in this proceeding and i think it's a bit of a misnomer the process is automatic only in the sense that if it happens at all it happens to go back to your earlier question i suppose an individual wouldn't know that how the attorney general has exercise discretion but what we would hope the individual would know is that he is that he is bound to maintain his his status the crime into it your relationship with admissibility now if the two are the same congress wouldn't have had a crime within a period of adjustment of status on one hand crime within admissibility on the other clearly there's a distinction for the you know i have difficulty hearing from my initial position back back going to the original argument the government never talked about you know when the government talks about deference gentlemen didn't talk about the other positions have to be at that reopen those cases one is the rodriguez rodriguez and the other is really just mark it just tells us to be i e it's been all over the map well like that if i think i think it means something that the agency chose to reopen one case under two thirty seven they want to say with what happened at the time of venturing because the statute looks at the time of entry or adjustment of status we probably wouldn't be having this argument but we're not because because mr president because it was specifically charged with having done something at the time of adjustment of status now at the time of entry ok i think i think we were going back to where we were so thank you for your time ha honor if i can just make a couple quick points by way of reply first of all the question is question about the significance of the a one a charge i would just like to bring that back and try to explain that again what's at stake you know the the  and was inadmissible at that time because of his sexual orientation in this mall for the ground of exclusion was a person with a psychopathic personality that was there was no fraud at all involved in that admission but later the board came back and said that person is the portable under a  four because he was inadmissible at the time of adjustment status and that's very important because under a one a the effect of applying a one a to a person is to say that you got your status by mistake and so in as a deportable under a one a is a person who is not lawfully going to court of the privilege of residing pretty permanently in the united states and that's why when they said so therefore because you never lawfully got your status you're not we're not treating you as a permanent resident you're not eligible