appeals on july twenty ninth two thousand and sixteen i'd like to discuss two somewhat convoluted issues before your honor's this morning the first relating to section two one six c four  which i refer to as the good faith waiver the second relating to section two thirty seven a one h of the i and a which i refer to as the property for i'd like to touch just briefly on the first issue which has to do with the good faith waiver i'll start by noting that mr rockwell entered this country over thirty years ago in one thousand nine hundred four on a visitor visa from guyana he met and married miss sharon collins here in chicago two years later in one thousand nine hundred six to this day mr aqua has never conceded that he entered into marriage with sharon collins for any other purpose except to establish a life together as husband and wife nor has sharon collins ever conceded any allegations contrary to this point now i recognize the jurisdictional bounds of this court but i'd like to make it clear that the focus of a good faith waiver under section two sixteen c four is whether a foreign national can establish by a preponderance of the evidence that at the time he entered into a marriage with the united states citizen and he did so decision granting that good faith waiver my viewpoint on this argument is that the subsequent revocation and denial of mr aqua's good faith waiver directly resulted from the fraud and misrepresentation that came to light after his final next trips results are received back to you chats that brings me into my second point which is the i g his decision and the board subsequent affirmation to deny even initial consideration for a question of the question of whether the gain the system is really before us today although it may be before the attorney general in the exercise of discretion or that's correct you just want to look at statutory  misrepresentation directly resulting from such a fraud or misrepresentation may cure the fraud tell me this was everything relating to solve off including the marriage and the application for permanent residency status done under the entirely different name of kofi obese yes your everything everything here and did he actually  force her and remarry her in one nine hundred ninety one or did he never divorce her at all it's unclear your honor the record the administrative record and evidentiary hearing mr r quest stated that it was  customary marriage and gonna and the two it did have a child and got it together which he didn't know about until he came to this country in one thousand nine hundred four so you know i'm not sure that there's an actual marriage certificate or divorce certificate from god in the record it was more of a customary marriage but he did lester has an ex spouse in his application to marry miss sharon collins the u s citizen so what's his permanent residency through his marriage just so walk in dish and all it was also conditionally or are you and was you pursuing residency separately through that channel under another name the entire time in the seeking lawful permanent residency status through file jointly a seven fifty one petition to remove the conditions on residency at that time they appeared on an interview and in one nine hundred ninety one over a year later the service issued a letter to mr r with a notice of intent to terminate his conditional residence status for failure to show that the marriage was bona fide so the initial notice to terminate the marriage with sharon collins was also based on fraud it wasn't until many things happened in between that time but it wasn't really until two thousand and eleven that mr erakat was even able to appear before and i j adjudicate the good faith of his marriage on the merits and in between that time he had divorce sharon collins in two thousand and three so the first opportunity team twenty five years after the marriage that's correct your honor it's unclear why the service i'm not sure has petitions have been lost he mr berg was his attorney at that time he filed a slew of renewed seven fifty one petitions by the time that mr arkell was able to even come before an immigration judge he had married he had divorced sharon collins rather so his case was administratively closed per the statute he was allowed to reopen based on the allegations of fraud but rick perry asleep he is still not deemed eligible for the very waiver that relates to fraud section two thirty seven a one each to focus on the board's articulated basis and denying mr eligibility for the frog waiver and the administrative record at page three sta by the board that even assuming mr awkward is adjustment qualified as an admission he's nonetheless an eligible for a fraud waiver because he was found deportable not for fraud or misrepresentation but for having his conditional permanent residence status terminated i believe that this is a contradictory conclusion and i'm not sure how the board and i j can allege that he was found a portable for having his conditional permanent resident status terminated when the very fact that his residence status was terminated was because the fraud was unravelled the biometrics result my main argument on this point is that the board reached an incorrect legal conclusion here in its articulation and as such i'd like this court to remain and so that mr can be considered eligible that's not even a discretionary decision just purchased at the initial eligibility stage at this point when you look to the board's reasoning its decision it lists a number of reasons for denying his eligibility and terminate for terminating his conditional residence status and some of the reasons that they list is that he failed to inform the i j a that he was married to two women at the same time which i believe is rooted in fraud he failed to inform them that he had a child born in this country which i believe is also root and fraud and he failed to inform them that he had previously been granted permanent resident status and provided false information such as his name and birth date on a previously filed adjustment these are all rooted in for your hono his one seventy five and three other was a delay petition when he first filed it in two thousand and three until it was denied in two thousand and ten i don't know what was the cause of the delay during that time it was ultimately denied because mr awkward didn't go to his interview so while he was pursuing this application for c i s for the whole time he didn't actually follow through himself and that's why he ended up back in immigration court if he had appear interview it's possible he could've resolve the matter himself at the time he didn't appear and didn't provide a reason for failing to appear so some of the delay was also caused by mr arkell as well oh would you concede that the term a nation of his conditional permanent residency status was integral to his allegedly marriage and identity fraud interpol yes when you look at the board decision the board denied the good faith waiver on very specific and narrow grounds that he failed to inform the immigration judge of key facts of his marriage his wife in ghana and the child and he provided false information on applications board cites matter of monroe to support the reasons for this denial and that cases about santa t h s can terminate conditional status when someone provides untrue information information and the applications he submitted was untrue so it's  not exactly the same situation as a matter of monroe but the mere fact he provided false information was enough to deny the good faith waiver my argument on that point primarily is that mr  the good faith waiver he doesn't develop this argument in his brief he doesn't refute the specific findings by the immigration judge indeed he appears to be trying to bypass this waiver entirely fight seeking relief under a different way for the fraud waiver and my my argument regarding the fraud waiver is that he's failed to exhaust current eligibility theories for why he should be able to be eligible for this waiver when arguments on behalf of represented applicant and refute them and reach the complicated issues that he is raising today his arguments are based on an answer to case vasquez which is not a new case it was decided in twenty ten i believe so there's no reason that these arguments couldn't have been made to the board and allow the board to address the complicated interplay between the one thousand nine hundred one charge of depart ability and a modern waiver that didn't exist at the time that's insufficient to alert the core of what issues are before it and there's also i can't speak for the board on fast cars because the board hasn't said it and i don't want to violate but there are a lot of reasons why the board might find vasquez in a political to this case conditional permanent resident we only address this question a situation in which the basis for admission was the fraudulent marriage here for why should that make a difference yeah particularly as i understand it the two thirty seven a one h waiver of the board has apply to fraud at any time not just at the time of entry right it might not make a difference your honor i don't know what the board would say if it were presented with these arguments properly but that would be one possible way it might just english it the board could also decide to anyone should not be allowed to completely bypass the good faith waiver by skipping over those statutory apartments and going to an easier for a waiver these are the types of immigration policy decisions that first be presented to the agency i'm sure as hell is how it is asking for a discretionary excuse so fraud easier them of the good faith w never been reopened in the first place i would argue there are at a minimum a serious cost by both sides in this case ok just so we're not trying to claim the moral high ground for the administration right now ok by that time when he submitted the application for the good faith waiver with miss collins he was already remarried to his wife from ghana and he did not disclose that information on the application but the government's primary argument here is that this incredibly complicated argument really needed to have been raised to the board in the first instance for me to step out in front of the board and say how would address them now would violate and get us into a whole mess of confusion more so than we are now it's actually there are a lot of complicated immigration policy matters to decide whether or not someone's eligible for this type of waiver under these circumstances didn't get into the actual merits of the fraud waiver in my brief because the board didn't i don't want to see for the board to say why is why the the board might agree with mr otway it's possible it would have packed he presented this argument earlier but the ninth circuit decision and ask was so is how complicated this issue is when they try to address that there basis for the terminations of his conditional permanent resident status if i understood you correctly was false information incorrect information in the  as for the court date yes bright are you distinguishing there between the information that happens to be incorrect and information that is intentionally fraudulent the board does not make that distinction should we and if it is otherwise it sure looks like a direct result of the alleged fraud to me frankly the terminations of his conditional permanent resident status as described in with the reasons given by the board i've got this right here on  manipulation that sure sounds like the same information that is the basis for the fraud from which he is seeking a waiver i mean so i don't know how that decision is anything other than a derivative of the direct result of the alleged fraud  you've told me it's too complicated but i'm not seeing the complexity of that question under the statute the statute doesn't waive all fraud all types of fraud the statute is a little bit more complicated than that the fraud waiver itself doesn't apply to every kind of fraud somebody might commit at any time the board's recently addressed the waive the crime involving moral turpitude and try to try to extend the fraud waiver of more broadly and the board rejected the argument in that case because some crimes involving moral turpitude might relate to the fraud and other ones might not and the board found it under mathis and their current cases involving visibility and modify categorical it's not able to figure out which c i rebuttal thank you i just want to address on a very human level that congress intended this fraud waiver to apply to foreign nationals who have family ties here in the united states mr aqua concedes that he lied to the i j a but i think that we can all understand why he did so he had a wife with sickle cell anemia a newborn baby who was diagnosed with the same his wife ended up passing away in two thousand and eight the government sat on and lost his application for a number of years you know it was that it was wrong but he he lied so that he could stay here in this country and provide adequate health care to his newborn child with respect to miss smith's arguments we stated in our reply brief as well that we are amenable to reminding the issue of the fraud waiver for discretionary relief so that we can argue bast was with the i j a and with the board as well thank you thank you very much