permanent resident status she was informed by ins that that was issued in error and that set in motion these entire proceedings she brought the matter pursuant to a notice to appear she was  then became involved and presented a writ to the district court district of nevada and that was subsequently denied and we find ourselves here in the interim the court had asked what effect the real id act might have on this appeal i researched that issue i found a case out of the fifth circuit gutierrez morale us vs home on for sixty one f third six o five which was decided august of zero six and the court actually dealt with a very similar issue it dealt with ineffective assistance of counsel in a writ and the court there found that  real id act had no effect on the ineffective assistance of counsel claim as the court is aware with one of the things the real i d act did was it removed this honorable court as ability to hear anything that was discretionary in nature a request for discretionary relief such as cancellation of removal political asylum those forms of relief have inherent within them discretionary issues that and congress for whatever reason has taken that away from this honorable court in effect of assistance of counsel is not such a case not an issue of discretion and that's made clear  yes and when when i had filed my appeal which was i wrote that down i believe this october fifth of or the real id act had not yet passed and so the fact i was discussing let me ask you this why don't we just convert your your one of the reasons i was denied is because the court ruled that everything that i could have raised that was raised at the board of immigration appeals wasn't fact discretionary relief and therefore the circuit court of appeals doesn't have discretion i disagree with that because granting of lawful permanent resident status through marriage either to a u s citizen or a permanent resident is not discretionary it is legal statutory in nature and therefore i believe the court would still have jurisdiction to hear that very issue if a person meets the requirements and can check all the boxes nobody has discretion to deny that relief and that is exactly the issue here is was the government acting properly in has not had the opportunity to be developed in in anything really yes or no and no answer simply because the me you're right i don't have the answer now your honor i wish i did but that as i stated that would go through empty  i don't want to cut off your answer to gauge known and i think you're right i think it's one that it needs to be factually developed it needs to be legally presented and she has the opportunity to bring this to this court to the united states supreme court if necessary she has the opportunity to argue that there should be a good faith extension of existing law none of which has unfortunately has been able to be presented because of the  here is that you're saying you're asking us to create this is a petition for review and we certainly and the order that was sent out had case law that supports that but it isn't very well framed that way we don't have a full administrative record there to watch of things that we know we need that we don't have before really going to review and decide what we could review about what the board did i agree that that is a problem because the normal mechanism would be to file a petition for review then the government for not not mr addington but through ins he would then get the entire administrative record on appeal i don't have any of that either because i wasn't able to take advantage of those mechanisms that would have given me the entire record on appeal that would have let me present that to the court i'm not asking for remained at this point i am asking that this case be converted into a petition for review and that we be allowed the appeal of the matter on appeal is construed and treated as a petition for review and addressed as if it were an original proceeding filed in the first instance for this court the concern i have and the  recall that i mention is that talks about it being treated as a timely petition for review this creates a bit of an anomalous situation in this case because treating that as a timely titian for review petition for review it's anomalous because if the petitioner had filed an untimely to review here she would have been obliged to explain why is your petition for review and timely but having filed  petition in the district court after the thirty day window of time had expired and then having that be treated at the time we petition it it treats two classes of petitions or some language in the  that any reference to this time problem and i'm not sure that this imam list situation that i've just described has been fully addressed in those prior cases it's just simply most of the cases that we say we treat it as a timely petition and i'm not sure how far up the standard of anomaly one has to go before it becomes absurd and i'm not suggesting that's absurd but it does create this anomalous situation that can be avoided by treating this as not so much a timely petition for review but as a petition preview with all of the procedural deficiencies which were inherent in the original filing before the district court i think this is a bit of an academic exercise because it's a roundabout way of getting to the same place in my view and that is how do we address the merits of this case treating it as a petition for review either with or without the ineffective assistance of counsel claim we still have to address are the plausible is or if laws will claim for relief here either in the context of the assistance of counsel issue or simply facially on the merits of that claim here the claim that's being made is based on this topple should the government be a stopped responding her permanent resident alien status because it is apparent that that status was provided either through firmat of fraud by the petition herself or through and error by the government her immigrant or her resident alien status was provided in the context of a petition for alien relative by her husband her husband was not entitled to that to file such a petition on her behalf because he was not at that time entitled to permanent resident alien status himself and so it has that's much a domino effect but firms the decision i believe it's one thousand nine hundred ninety eight and then he's eventually physically removed to mexico and in the meantime she obtains her immigrant visa and enjoys the benefit of that immigrant visa for a period of time but eventually that's why i'm not pursuing aggressively this friday issue but clearly she was not entitled to that immigrant visa because the person who applied for that immigrant visa on her behalf was not entitled to do so i think it may be clear that the government shouldn't have given it to her and to state it is strongly and if you could on her behalf it would be that the government must have known collectively that she wasn't entitled to that and they gave it to her anyway and there's an amount of affirmative misconduct and i would say no it clearly does not because she comes into the con in mexico city and says i'm entitled to this visa i've checked all the right boxes my husband has filed a petition on my behalf he was a resident yelling at the time and i don't know what level of communication there is you know globally in terms of how cross checks are made to make sure that all of those representations are correct but based on those representation is that she makes and simplifying that the boxes being checked properly she's issued this visa that does not rise to the level of a pattern of official misconduct that would give rise to a sparkle that would a spot the government from ever rescinded that erroneous decision i best simply an error that was made that granted her relief to which she was not entitled granting her status to which she was not entitled and certainly the government can rescind that grant a privilege that grant a status when it is clearly made in error i guess at the time she first filed his status was he did have a permanent resident status maybe he shouldn't have had pretty did have it eliminated his status his eligibility didn't eliminate automatically doesn't have to be a hearing or something like that yes and there was a hearing there was a proceeding that resulted in one thousand nine hundred sixty in the right words that's my point that's four years later and i would note your honor that the district court in this hideous proceeding in the in an april two thousand and five order in the fact that i'm not sure where your claim of ineffective assistance of counsel issue is going but provide additional evidence additional argument to support your claim so that i can see that i the district court can see whether you have plausible grounds for relief under this ineffective assistance of counsel analysis and so the petitioner provided an affidavit provided the argument the brief that was supplied to the immigration judge and to be a to support that notion that there was plausible grounds for time that we should we should at least have the administrative record before disposing of the case or can we just do with what we got i think that there is a sufficient record before the court now with her affidavit with the brief that or that was part of the record below but in either event that's the record that she provided to the district court to support her claim that might be a little bit different though than the record before the immigration judge in this my friend with think it would be slightly more expansive than was provided below because it was rejected below but this court i believe has a sufficient record to deny stoffel based when somebody is denied the entire benefit of the appellate process and then at the very end the court does say oh by the way there needs to be some plausible form and i was trying to square those two in my mind and i did not sure that i process plausible forms of relief that were mentioned at the end of the turn your opinion i believe is something that eventually is going to have to be addressed but i believe for purposes of this hearing and from my client's ability to get or put back in the door on a petition for review i would respectfully request that the court grant that relief and have the administrative record in full before the court and allow her also to make whatever arguments she could make through the appellate process without a stop will and the afflict ability of a stoppel to this exact scenario plus any other due process claims that she may have as to streamlining at the board of