includes post adjustment of status or does that require a lawful entry there is a strong textual basis for concluding that it does not include an adjustment of status this case is not about whether engaged in marital fraud i agree that the government has a legitimate and compelling interest in fighting immigration fraud the be i a wrong in its order yes yes when it says your client pled the b i e order says marks mark is your client pled to a three seventy one that that's just wrong mr marcus denied the allegation the charge that he both charges there is two charges and the marriage a criminal case this is an immigration i know but there's an underlying operation for a criminal conviction of the woman if even though there's no conviction if they say there's overwhelming proof of  fraud i know they withdrew the a six but wouldn't you be able to then say you know in some version of their logic this may not even be what the government say but at that point he lacked any proper entry document and and so they were the trial involved a hearing about marriage fraud and the underlying removal of charge was whether or not he possessed a valid entry document or not and that's what with the government is trying to do is is trying to say that at the time of his adjustment of status he was a simulated to a person who is applying for entry as if he was outside the country  and what they were trying to argue was that the because he was not in possession of a valid entry document they were trying to argue that the term valid somehow meant that he had to have a valid visa at the time about his application for for adjustment status which is absurd because the adjustment there are two different concepts here but the behind has been pretty stubborn about that including the twenty a j letter they submitted that is how t entry that involves a person who is not in possession of valid immigrant visa now if you look at the context because this court ruled that when we look at that that language it uses the word admission and admission is defined by the law as as a person who is making a lawful intrude into the united states and this court in martinez versus mckay see they held that under that's james statutory definition and how does that play out logically he would be put in the position where he wasn't begetting which is a person who has a lawful permanent residence now initially what we wanted to do is we wanted to file a motion to reopen with the b i a see if you can ask for relief but in order for him to do that there needs to be an affirmative finding that he engaged in marriage fraud an allegation which he did not seem to be getting when that morning became order from the v i i we filed a motion to reopen it to see if he doesn't explain it or do you also well what i meant by that your honor is is that we don't know the reason why the marriage fraud which is to correct the charge was withdrawn i can only speculate looking at the  record it appears that the council was arguing that it was an invalid marriage and an invalid marriage you don't need to have the marriage fraud you can somehow use under this new fangled interpretation that you can somehow say that this person did not possess a valid immigration unexpired immigration visa document back to judge in bathrooms question i thought at the end in your relief section you did have an alternate request that to say that this does not involve the plain language that i would like let the very least for the be i a e a to expand more on what how they came about with with saying that a person who  shows up at a port of entry with a how does this how does this charge reflect the situation i guess because i think here i don't think this case amounts to nothing more than an improper charge by the government i think the government had to correct charge initially but they withdrew that and in based on my experience i've never seen a charge like that relating to a person relating to a person's application for adjustment stat but not necessarily off range of possibilities so it does seem to be on the record before us very strong evidence of marriage fraud and his eye one third it was based on his marriage to which was void so surely there's a basis on which to be i e can deal with that on immigration judge can deal with that so you seem to be acknowledging the fraud but just saying two twelve eight or something else gives you a light to seek relief from we move on that  why there is not some ambiguity in to there to me that ambiguity is not so much into twelve itself a seven but in the overall concept of adjustment of status which was as you explained a brief government doesn't forget which  can see the i a e a pushing this is many times as a path they surrendered on to twelve h a little while ago but not on this so why isn't that concept that adjustment of status is just a short form that that prevents the physical need to leave the country and then be readmitted for an immigrant visa but you still have the equivalent of that and so we have just a few status without having to leave legally still being read mitted as an immigrant it works logically it it's a possible interpretation the problem with that is that if we can't there can't be a full simulation i would submit because although the person is placed virtually outside there has been some recognition that this distinction about the entry document requirements which is the underlying charge and we and that i can't escape from that it's very plain that that is required i agree that simulation agrees in some context let me ask you about the documents after i won thirty years of proof as his was correct  the person is issued if they don't have a visa or already if not already here they need an immigrant visa to come in and the guy went for his approved that's correct your honor for adjustment status it's more of an abstract notion it's not a new visa i guess what i'm asking the government can tell us of your answer isn't quite right but you understand there's not a new immigrant visa by the approval when i went thirty two somebody was here on a nonimmigrant that's correct got me so i so eighty seven would never be available to have a functionally equivalent but that can't that the assimilation concept was is usually applied when but to prevent absurd results now let's just say that in this case he's been charged with two twelve a seven a person so this is doesn't become problematic the government has for example it could have charged here the marriage fraud and that applies both in the adjustment status contacts and the american visa context it could have also done therefore he's the person could be removed or being in violation of the law that applies both in the adjustment status context and also applies in the immigrant visa outside contacts the government could mr marcus actually here obtain conditional residence so under the law the government could have made a an affirmative finding that he obtained his his his visa or his adjustment  status based on marriage fraud and he could have terminated his conditional residence and that's a separate ground as well it's all this that also there's a there's a concept called rescission and that applies for a person who's not eligible for adjustment status when you answered b i's interpretation is plausible i thought you part of your brief argument was that it's implausible because the logic of it would mean that applicants  something that is a person needs to be meeting substance substantive compliance requirements that that's a that's a plausible theory but i think that in the context of this case in the language of the law would not allow for somebody who's that valid is means something different i think in this context and the section here twelve one title eight has  seven's been used in this way or how far back how far back does this approach tell you i'm not able to enter how far back that's not something i've looked into in preparation for the argument but several of the cases that have been cited in our briefs you see the government has we won in a decision that is side in or a brief from the six circuit still shock that case had the eleven eighty seven ace the a seven hundred in the a six charge but the arguments presented here i don't know if they were presented to that court so in other words there's not a discussion of the arguments here about a seven being an improper charge but we do have the six circuit affirming the board's decision to find him removable on that charge when you cite how mispronounce  that that no longer would be valid authority right that's right so the board since the circuits were rejecting the analysis in the two twelve h context the board has since acquiesced to the court's decisions on that for uniformity of federal law and it was the eleventh circuit is the only one that said well it's hard to accept martin is type reasoning which now b i e is retreated from and not make the same logical conclusion in this context ortiz is the only court to have found that yes and ortiz decision in the government to mit's that we don't have a grappling with the arguments that are presented to this court about the absurdity of importing the reasoning from the two top of each cases into this context so we just don't think there's a i mean we're stuck with the eleven decision we did file a petition for a panel hearing but it was denied we go the other way we've created a split there's already a split on the issue of whether a post intrigue adjustment of status can constitute an admission we have that another context for that for instance in the ninth circuit many many years ago they interpreted a post entry adjustment of status as an admission in the context of removing an aggregate felon and that's one of the arguments of the government's making in this case is that it is absurd for someone who blows past the border has no it mission adjust their status to that of a lawful permanent resident murderer somebody then is not removable because the language of the statute for aggravated felony requires an admission so that's one of the instances that the government is providing that the board chavez's answer is correct that an alien who adjust their status in the united states is never issued a physical immigrant visa that is what adjustment of status waves that is the only thing it will use is that the alien does not have to leave the country go to the consulate in rio like mr marcos would have to do and pick up the visa instead he gets to meet all of the same requirements that it takes to get an immigrant visa every single subset of requirement that it takes to get that visa if you are an alien applying outside of the border applies to him the difference is he doesn't have to step foot out of the country and go pick it up now there's somewhat confusing to you mr marc has cases that he's what's called an he has an immediately available because he married a united states citizen so that is one category of people who get the says or a person can use a petitions that don't have to wait for a visa number to become available if mr mark has had married a lawful permanent resident instead of a citizen he would not have what's called an immediately available b so he would have to wait even as a person who's adjusting his status for a b set to become available so they are inextricably linked i mean they are you have to wait for a visa to be issued abroad just don't have to go pick it up mr mark has didn't have to wait because he's in the special category of people who marry citizens but the vast majority of the alien to adjust their status the united states preference category visa holders have to wait for their pleads to and i mean the million dollar question for me is why do you withdraw and then you may just say well the record doesn't say that it's our prerogative i would say both of those things but i also asked if you want to know the real answer and i asked counsel who  case she said that this was one of the first of about one hundred fifty cases that were prosecuted out of this operation phoney love and when an alien so they charged up the seven charge and a six fraud charge in these cases they think that's the appropriate charge is not a new newfangled mr tribe as a way to go about and in run around the fraud charge they charge both very frequently but the counsel that mr merck has had to load  wouldn't concede to the charges he wanted the government to prove up both of the charges what happened in the majority of these cases was that aliens counsel would concede to both of the charges at the nass for a waiver then what would happen to remove a proceeding such as duping out whether the ali n should get the waiver as a matter of discretion in this case mr merck has counsel billowed would not agree and because the a six fraud charge has a higher burden of proof because it requires intent it requires the government to act to its detriment it said fine we'll just go with the fact that you don't have a valid visa we know you don't have a valid visa because your citizen spouse lied on her form and you paid to marry her etc etc so there was an overlap i mean obviously frauds although over this record there's an overlap between the two but the government dropped it because it didn't want to have to put on the evidence when there is one hundred fifty other deportation cases waiting to go within the scheme in that same office when his or anything my background's criminal law you can't constructive see it's not clear whether the charge that was initially charged the fraud charge was withdrawn with or without prejudice a just doesn't say i think that they will try if this case goes back to  don't know this for one hundred percent my speculation is that the government didn't go after the aliens criminally because it's easier just to remove them it went after the citizens so everybody that was convicted criminally for the three seventy one is that right the conspiracy charge those were all united states citizens and it was easier just to then put everybody in removal proceedings that benefited in appropriately from having paid people to marry them so i know i have to weigh the ambiguity arguments so if i could speak to that a little  the focus from the government's perspective on how the ambiguity arises is to start with that a portability ground where you don't hear mr travers say a whole lot about twenty seven the whole focus is on eleven eighty two but the actual charge of deport deport ability adjustment of status and having it admissibility problems at the time you adjust your status and the cross referenced to eleven eighty two where it says that an applicant for admission needs to have the right documents that has since at least one thousand nine hundred ninety continued to hold that post in tree adjustment of status can in some instances constitute an admission and as you pointed out the board had to walk back from that in the two twelve context because of what the circuits were saying about the plain language of the two top page waiver but the same week that the board walked away and acquiesced to the circuits view on that the very same week it published the decision that the government twenty summit of the twent plus the same and it was after so it said if we throw our hands up to twelve h the circuits are right there's nothing we can do when the circuits say it's plain language right can't come back and say brand x arguments and agencies should control we give up into twelve but a week later it said we are still sticking to our guns in the top twenty seven context as it interplays with eleven eighty two there are times when a post in trade just in a status has to be considered an admission to avoid the but as you know better than i have them off a lot of grounds have been a missed ability they don't directly talk to somebody coming directly into this country at the time of admission i mean at the time that you're examining that issue so i just it's one thing  getting back to the word plausible which may be judgments and has got the opposing counsel walk back from a little bit in your lease making a plausible argument here but i don't see that it's of that i mean you've got to create ambiguity force which is what you labelled this your argument as being i just see it as creating a limitation on how far to thirty seven a one a go so you've got to find somebody who who has been admitted to needs to be admitted at the time that he's an eligible for it for being admitted argues similar to what you just said that there's a lot of inadmissibility grounds right and the twelve twenty seven a one it doesn't say doesn't list out the ones that want it wants to apply it just says if you're in admissible under any of those grounds either when you came in or when you were just of status then that makes you deportable and mr travers correctly points out in the brief that one interpretation could be that not all of those and emissivity ground apply under eleven twelve twenty seven and and that that could be an interpretation what the board's looking at though is can it apply i mean that it's prime to reconcile the statutes in a way that gives effect to all of all of the option institute these removal proceedings so if it doesn't start from the proposition that adjustment of status the language of twelve twenty seven is a limiting provision it's seeing if it can reconcile those two if it can't find that's not a removable to ground but if it can then that government should be able to charge wishes in these cases now i do want to say one thing that may not have been totally clear from the briefs if an alien like the diana hernandez was never legally married to mr marcos she was married to a bunch of other people never divorced so when the citizen is the one that commits the fraud and gets of me so for somebody of isa petition approved for somebody the government cannot charge the eleven eighty two six fraud ground because that ground only applies when the alien commits fraud not when the citizen does the only ground that's available to remove somebody h the government fears is if the courts go the way that or they are to use decision did in that case it was a marriage fraud it was a religious worker visa and so it was the citizen who applied for the religious work or the half of an alien who is not a religious candid i just adore when this level of clarity is given in modest sort of moderate statements but it is the opposite fear for looking at government fears you don't want to have an exactly appropriate subsection marriage fraud but it's just harder to prove because of c enter so this interpretation of a seven will swallow every six the government again having been a prosecutor they're going to choose the one that's easier to prove yeah yeah that's worrisome but that isn't that but why because both apply i mean well one's harder to prove that you are but they're both there i mean they are significant overlap they're significant of course especially we're dealing with marriages but keep in mind that not all people who get i really if i got one hundred percent of what i wanted i would love a decision that says that martinez oh yes ok i would love a decision that says that martinez is confined to the to salvage context that's the board's view of it but i would love the court to say i would like for the court to say that the government doesn't have to choose between what the preferable charge would have been fraud let's just three men from the agency to lead just charge fraud and have this case go away because maybe i would have said that if ortiz want out there but we've got a circuit court saying that the government martina's to the statute that it was interpreting and the language it was interpreting which is not at issue here and find that there is ambiguity when we're looking at the portability cross referencing to the  several published citizens most notably the twenty eight day letter matter of the go hour that closely very closely resemble the analysis that the government gave here but i think even though even understood more deference that this board decision is completely consistent what the board has said since the ninety's and continues to say even with some repeated ation in the to talk of each context from the courts really the next to hurdle for you that this similar analysis has been rejected and even context in which the term made it was used so here looking at the at the specific context it's the plain language is clear that this applies in tree situation but if we go broader and we look at the the two thirty seventy one h language the entry or adjustment status and there's a concern of whether or not there's an beginning there i don't think there is because it's it's  provable fraud i think there's other bases upon which there's at least five that i looked into that that the government can employ to combat general fraud marriage fraud employment broad and so if we if we are going to allow the government to use this tool what does that make up of the other  has to try to address that and counsel mentioned b i decision that she recently submitted matter of a gore but that case undercuts the government's position because in that case  a green card that the person was not entitled to so that's a very interesting that there they made the correct charge i honestly haven't seen again based my personal experience practicing immigration law  discharge i think this is something new but you two right there is on the case well out there that i was overlooking my question that shows it's been around for a while well i think she's referring to is where they're they're where the concept of the simulation of a simulation was used in this particular context she cited may have been in the i'm sure it was in the breeze to salt stole jack's cell jack you want to mention do you have any comment i think that that case involves rescission i don't think it touches on this particular vague remember correctly i don't think it it discusses this issue i don't think that she was before this court if i remember correctly had something to do with refugee status and and  sending the adjustment status after the person obtained refugee status but the question here is not what is the most directly applicable charge to be brought her removal it's what is just within the range of permissible charges and  what the what the government is is arguing that a person if a person's ineligible for a visa then that person is admissible somehow i mean that's how it reads and under the law the person needs to be