thank you is a better that's perfect it is ok i'd like to reserve at least four minutes for rebuttal and the first issue we have is the jurisdictional basis for this petition as the court aware of this was a transfer case originally filed in two thousand and three as a b s corpus petition and thereafter was transferred to discord under the real i d act after its after it became law and as the court is aware the time limits under twelve fifty to be one do not affect the jurisdiction and under these circumstances so it has to be treated as a timely petition under those circumstances now the first issue then is whether or not we have a what we might call a gross miscarriage of justice that has been raised as a standard the only case by opposing counsel the only case of the various cases cited by the by opposing party is which appears to be relatively on point would be martina's merino which basically holds that there is no gross miscarriage of justice when the hit titian underlying petition was simply challenging procedural issues as to a reinstated order what's different in this case is that mr worth man has fundamental due process issues arising as a result of that very same of the order in this case was removed without notice because of the failure to serve the notice of the the decision of the board of immigration appeals after it was recertified and was removed out of the lloyd attention issue raised so it's a fundamental due process issue in other words you have a right to notice an opportunity to be heard mr workman's looking at the possibility of filing a petition for review although that wasn't discussed nobody  knew there was an order at that point but that is what he was essentially stripped of now in addition to the notice an opportunity to be heard under the books preserved under the regulations a process clause of the fifth amendment we also have a second issue as to the certification procedures in this case and in that case under the regulations as they existed at that time required that the every second decision which was the case in this case after the b i a sent the case back to him after the certification he would have to issue notice of the certification and w the procedures were at that point now a third issue comes up in this case but let me just ask to make sure i understand the notice issue when the i j issued the order decision mr worth and then the attorney were present correct that is correct for both the two thousand order and the two thousand and two order ok and are you saying that they were and at that point notice was given of certification as well or all of the second second hearing after the remain and from the board of immigration peels or oral indication in new order of the b i a and by the immigration judge oral notice was given but when he decides to recertify it back up under the regulation as it existed at that point required that he simply provide the parties with notice as well that he's basically responded to breeze i'm sorry i responded to brief basically they're arguing that because the oral statements in court or enough to put us on notice that's a mandatory quote requirement under the regulation and if he doesn't provide us with an written notice then it's an invalid under the rule would be an invalid issuance of the certification but you're not claiming lack of knowledge you're just claiming lack of receipt of the formal notification correct on the order of the immigration judge and a r four is not sufficient in your view then yes i if he's going to certify it he needs to give us notice he needs to provide that written notice so why is what you have actual notice but there's a as you can handle take that as a given new there's no receipt of the formal notification why is that a gross miscarriage of justice that  so i would tend to agree with the court that would not if that were the only issue in front of this court then that failure in and of itself may not be a gross miscarriage just so what else to have that's a gross miscarriage of justice the failure to give him notice of the final decision of the board of immigration appeals and on that one your contention is not that is that they didn't send it out or that you didn't receive it he did not receive it we received no notification whatsoever mr wirth man wasn't served with it until the expulsion and the fact i did not eat the council did not even know of the order until after the expulsion of taken place when temp was made to set up a interview with months later the filing date would have meant that we he would have been young enough to have the earlier treatment as you are younger person and so on do we get to consider those things as part of  gross injustice gross injustice in addition to that would be included in my estimation that the failure to a lation it was in effect at that time the filing date controls if if we were to deny the petition where would that leave him we still have the issue of whether he has what his citizenship is and this creates a real dilemma for resolving this case if he is in fact a us citizen case over that can only be or found to be a mexican national ultimately after hearing of the fact and from the district court would leave him now with a current visa because under the current state of the law his visas are all current no matter what is stat are so what one of the procedures didn't see this in the briefing and maybe you know maybe you don't know what are the procedures to get from here to having been to having him be declared state less what i would like  might propose procedure would be simply if he's remained at the district court and you make those finding of facts and we have a definitive those findings which findings of fact findings of fact would be whether or not he's expelled from mexico as a united states citizen he's deported back to united states of two thousand and three so then the question becomes you can certainly subpoena the records from your subpoena counselor officer from mexico to review a present evidence as to why and what basis they claim he said the united states citizen well known i'm not sure i'm understanding yet and is this in order to get a declaration the united states citizenship of the district court or is this to get him declared state laws that one is a united states citizen and the second issue is the state so i asked one of the procedures to get him declared state laws you would have to have a hearing on the evidence in the district court yes and then if they've determined that he is not in fact the united states citizen then he would be left with no other status except to be stateless if mexico does not think he is one of his citizens so he i want to ask about this mexican proceeding so at this point we have a proceeding in mexico that says he is not a mexican citizen correct they say he is a united states citizen right or they phrase it right which i guess by definition maybe you could be a dual citizen but event he's a u s citizen according to mexico yes all right and then was there any appeal or further proceedings in the mexican proceeding after they words i've got a question or two that may be relevant to ask one out of of the government has a chance to respond is it there any possibility that it would qualify under the so called foundling statute that is to say he was in the united states before he was five and we have under certain parts of our federal law on the criminal law that found in the united states merely means being present in the united states isn't there a possibility of him qualifying under the foundling statute that i've not heard an argument from you on this point i'm sick ok there's a possibility of course but you made that argument at this point no i have not raised that in the brief it was raised by the government brief on the issue of whether a three a one g f rather a claim would be make and what the the problem with that statute is that he is aged out at that point he had to make that point before he turned twenty one and i know he is now standing in line for a visa on the assumption that he is a mexican citizen and he's got a certain priority date i think in september ninety seven and that line is moving very slowly any estimate as to when he has his visa would come up between here and then between here and the time right under the childhood protective status act which was passed after he how long would it take if the visas for visas available he can apply now know now that it is at a different yeah i've got a different question he has of he has a libyan approved of these but he's waiting in line to a sort of the number to come up because a very few people are allowed per year so that line is moving slowly i'm trying to figure out if we are still waits and now on what's the likely date upon which he will actually get that visa operative that these is current  know i'm not i'm asking a different question when will be he be admitted under that these are i say he would have to have it adjudicated he could do that by way of a motion to reopen administrative only that would be either established his citizenship or raised a genuine issue of material fact regarding whether or not he is a citizen of the united states furthermore mr worth not identified sufficient circumstances that would allow this courtroom review his previously executed removal order well let me ask you a question counsel you know the it seems to me that even if you are even if you are correct on the points that you have made in your brief and summarize this morning one thing we have to look at as to wh is is is whether there is better gross miscarriage of justice would you agree with that right that would be a question is whether that would have to be established in order to look at the original order yeah you know justice kennedy once said sometimes in a published opinion from the supreme court that there are rights for which there are no remedy and maybe this is one of those cases i don't know but the fact of the matter  time manipulation a little bit and but for the passage of laws in one day versus another would be in this position at all it it  certainly seems like something that most people would be if they have a conscience at least upset by and there is i said there may not be a remedy here for him but there certainly should be i understand your position around this case has taken in unusual course and therefore an unusual amount of time in that process  there is nothing no statute that requires that places a timeline on the judy cation of this type of visa nor is there  process liberty interest and discretionary relief which is ultimately what mr worth meant was seeking an adjustment of status so no on that on that point is the attorney general vested with discretion on the adjustment of status if the petitioner is otherwise eligible and one of the eligible requirements is that there be an immediately available he said at the time of the application and why wasn't a time a temporal problem with the granting of the visa there is that is certainly a factor but there's been no discovery on what the process was what the questions were as to why the beast how the fisa worked its way through  process how long did that it would occasion process take the record doesn't reflect any particular time frame for that iraq i understand this case has been in mediation is that correct yes i guess i'm a little surprised that we were talking about one individual who was clearly here with his adoptive parents for all that time while he was a juvenile it was and i guess your are you telling us that the attorney general's unwilling to either exercise discretion or to recognize that through the series of circumstances and maybe through no fault of anybody but that there has alternately been a miscarriage of justice with respect to this individual it would the question of whether or not there's been a gross miscarriage of justice is not related to the actions after her arrest the order was issued in two thousand and two relates to the question of how that order was issued whether or not the order itself represents a gross miscarriage of justice right but although it's not a statutory requirement afterwards the result is the same as and i mean we're talking about one individual who really through some weird confluence of circumstances fell between the cracks time wise with all these remedial statutes that recognized that you no fault of their own children were being denied adjustment of status and then we have this de lay which there's no suggestion he caused that correct in the issuance of the visa well perhaps  immigration code under their pillow in terms of being a parent so i mean that's why we have all these series of statutes that were designed to fix this but they don't fix mr worth my situation no your honor they do not and what in your view what are his options now if the court were to deny the petition what would happen well there would be as understand and you rep that's the client i recognize the situation you're in but that's one option and we'll come back to that are there other options and if that but that option also has other issues mister stands convicted of a crime involving moral turpitude which renders him inadmissible there would have to be a waiver of that in disability as well as immediately available and my understanding of the crime of moral it was arson but it was not arson like burning down a house to get insurance proceedings he was essentially being a bad boy playing with matches he gets out of control on a burns the family home correct it was i believe the statute described it as willful and wanton conduct it is not it was not part of a fraud scheme that is correct your honor but he wasn't trying to kill anybody by burning them down i'm going to find a troubled boy i understand your position so let's kind of keep marching through these we've got the most open that of course has a series of hurdles that you have to get through  f the motion to reopen is denied and the united states and he's not a u s citizen for whatever reason but mexico says he's not a citizen there would he be state this person is stateless if they have no citizenship ok anywhere that would mean that that particular decision of that one of ministry of officers was going to be upheld by mexico we have no idea what was behind that decision and whether or not if it were priced it would hold out so well with the but but at some point you're faced with kind of competing denials by nation states and at least it raises the specter that he could be state country citizenship will not take them back removing them to a third country that is correct that would be pretty amazing wouldn't it here that would be and it's rarely done as a practical matter not in this kind of situation but in general correct my so that's the other one is he could prove he is a u s citizen or he could not i'm ok but to also remove mr worth and then there's the question of what process has to occur and i don't since we don't case were for example held in abeyance pending a motion to reopen and or a petition for statelessness or such other other remedy is maybe available under the immigration laws then we would know the answer to those questions correct it is possible you know there would have to be if the court is looking the question is is the court looking for every port from the parties as to what the process would be if the case were remanded no i am just asking you we see quite often that cases are either held in a band so they remain and to give petitioners an opportunity for example to file a motion to reopen we recognize that would be out of time and we have yet another hurdles so without making a judgment on what might happen if we were to either hold the case in the bands here or remain and it then one or more of these potential avenues i'm not sure exactly what the process will be because there's a real question as to whether or not reinstatement would reply if mr worthing was paroled and i don't know the exact circumstances but it's not in a legal reentry right well  goes into then there might consequences the collateral consequences of denial of a motion to reopen which may then have another appeal but without getting into that because no one could question jeremy just where to remove mr wor an would only come up with an order of removal all right and it does not appear that mexico would welcome him if he were to be removed to mexico it does not  to ship him off to brazil where you have to determine if there are other if there is another country that will take him there is a process you know this is crazy but you know you can't you can't seriously ask us to think that that's a rational proceeding he was apparently born in mexico he would come to him to this country as an infant he in not really knows only this country and you're suggesting that we send him off to some country to you can't even one name at this point because well we don't want to mexico won't take him and say or some other country that's realistic are you serious that is  mr bennett i gather he hasn't approved this application coming from mexico and he's standing in line and you know i think about that in terms of how fast that line is moving and when he might actually that that might actually be preference and it's getting close i mean i'm trying to figure out how long we should hold this case in a band that is safe if that if that's going to happen within six months that's one thing of us not going to happen for twenty years that's quite another i don't know that it's going to take that long i really have i have not been watching that line so i don't know how fast it's moving very fast but i really should like you i appreciate that you c d the bullet and going to see where things are yes i will i will get back to the balls and inform the court what the status of first preference is i do not know offhand that he remains a first preference i understand that is the petitioner position i would appreciate i think that the panel would appreciate some for the reformation on that point and i will i will take care of that when i get which and when did he during that four plus years of he aged out after the first immigration hearing with the judge in two thousand he aged out at his birthday which would be the fifteenth of december one step petition was the way it was filed yeah let me just go through some of these options that i walk through with mr connelly and when we just talked about there he's suggesting that you a course or if quested first preference and he doesn't know how the visa line is moving now that he'll inform us of that it's my understanding under the abusable if i'm reading it correctly  first any possible preference he could be are all current i may be mistaken on that but it's very close if it's not exactly but i believe it's actually current based on the state department publication and what if if the case were to be decided and held in abeyance for whatever reason he suggests there is the possibility of mandated excuse me transferred back to the district court and we just at the very end as counsel pointed out very narrow issue of citizenship as an american not as anybody else if that's  remedies he's most likely state so that's my ok so if he's determined not to be an american but the district court then would you still have the motion to potentially but you knew of course a hearing in determination on that exactly no are you asking us to remain and what i know you would ask us to actually grant the petition but if we did not i think it would have to be in conjunction with a well thinking about it and i think it have to be in conjunction with a motion for reopen where in order to adjudicate a b is to forty five to eighty would you see those as occurring in parallel living in santa barbara county in santa maria which is where his doctor father lived before he passed away he is currently indigent and  is that's essentially where he is his family ties connections that still survive are in berkeley california and this just in the san francisco district so he has family networks still but misdemeanor after he was expelled from mexico and taken into custody under a warrant from santa barbara county on a potential potations probation violation that was then reduced to a misdemeanor at that point so it would be depending on his overall criminal history that would be no longer a crime of moral turpitude bar under a waiver of the exception so on a motion to reopen that's not yet another hurdle he has to jump over in your view i believe there's a legal argument against you know why this has nothing to do with this case but my concern is that bandied around here were a lot of comments made about what the parents might have done or could have done i would like to know this is speaking for myself only assuage any thoughts that they might have that this was in their their responsibility or fault in any way shape or form it seems to me looking at the record that mr worthless parents were exceptional individuals they adopted ten children who were in extreme circumstances with very little help if any at that time from the government or anyone else and i think for them to feel any guilt over this would be a in itself a gross mistrust as thank you thank you i would like to thank both council for your argument and also it's it's quite apparent that both of you are highly skilled and fluent in the immigration law and i remember leave me that is a real pleasure for us because each one of these cases stands on different footing so thank you thank you both for your argument and also for the briefing in this matter the case of worth of men the whitaker is submitted the last two cases marlowe be sitting county of san