on pronouncing it correctly both of which hold that adjustment of status constitutes an image and admission for immigration purposes under two different sections of the of the law and there's one other saying where the parties agree and that is as stated on page fourteen of respondents brief the only issue in this case is whether mr low's alien smuggling conviction occurred within five years of  the issue is whether her admission by virtue of adjustment of status necessarily also constituted and and that's that's what the court is has to decide today the government claims that the two terms are essentially interchangeable and here the board and i are huge yes and just to make sure is that the issue before us because describe to me again procedurally where we are sheet the i j a finds that she did smuggle she challenge that sufficient proof to the b i and i know that but it just so i know the history goes to the b i a on that we there wasn't proof of that b i rules against your client you move to reopen is that when you said reopen because counsel was ineffective for not arguing martinez and marcus of for not for not arguing that and mission an entry of the martinez mark as locke just sensually yet then the court denies your motion to reopen you moved to reconsider that's denied that's also ok so what we're reviewing is the denial of a motion to reconsider a denial of a motion to reopen but am i right now here's it's important to get you know there's no better  who is our review there for more restricted by virtue of you being up alleging error in a denial of a motion to reconsider because somewhere i thought from reading too many brace that we would have firm if there's any perceptible rational approach to justify the decision so i guess the question to give you a question is can we affirm on any ground other than the one stated which was b i e s disagreement with because says is the case i'm thinking of we said the opposite that we have to affirm only on the ground the b i gives us otherwise we would remain and no in rica's allows for that exception that yesterday that unless there is i don't remember the exact wording that in rica's does allow for affirming on other grounds so we could we're certain the record say for example that her allegation supporting the motion to reopen that she had received ineffective assistan i know but that was my question if they made a clear error of law but there is an independent basis to affirm can we affirm on that work and if there's an independent and independent basis for affirming that provision of if there were some other basis for sustaining the b s conclusion that entry and admission were synonymous then you could use that but you can't go back i don't believe in and find other things in the means coming in whereas adjustment necessarily is after you've come in so the government acknowledges that's our law they then say but you haven't said it exactly in the context of twelve twenty seven and therefore it's ambiguous and we get chevron deference well first of all it's not ambiguous because the board has long held exactly what entry is and that definition of entry has started from one nine hundred seventy three in matter of  what here says it means so but there's no chevron deference to a unpublished decision that relies on a published decision that doesn't hold what they're trying to have it say at best they would have skidmore deference if their reasoning were persuasive which it is not because the entry is entry and has long been entry and there's no ambiguity in the entry and you were in fact  ambiguity isn't in in admission which is what the b i i said in the book read that you know the statutory definition of admission doesn't really cover everything that admission means and one of the reasons that perhaps the congress did not reenact the definition of entry was that the definition of entry that previously existed also did not fully cover entry and that's why the b i had to come up with its own definition of entry in  when we now have a situation where the ambiguity is in admission but not an entry and what what the the board said in both of the where it said that we have  long i may quote in the solution to should both before and after they are ira we have described an adjustment of status as merely a procedural mechanism by which an alien is assimilated to the position of one seeking to enter the united states well the most recent webster's unabridged dictionary describes the simulated as to make similar or to compare but that does not mean that because you can compare it to that than it is that you can compare me to a lot of people sam similar to a lot of people but i'm not those other persons and to say that adjustment of status is assimilated simply means that the grounds of inadmissibility most of reason that the board gave in this case for finding that they were the same and that certainly doesn't give it chevron deference or i don't believe it even gives the skidmore and the fact that this this definition of entry matter here has been consistently followed both by the b i and there's a big decision after ira ira after the definition of entry was removed from the statute and a matter of applied within one year of his last arrival to the united states and there the board said well you know a rival we're going to give it its plain meaning just like we did in matter of pierre which gave us a four prong decision the interpretation of how you define entry arrival means that last coming to the united states from from a trip abroad or from a place abroad well entry has always meant what it is stated in matter of care in those are the four elements it's as stated in p r involved one of crossing into the territorial limits of the united states i was a cool presence as has his any other circuit disagreed with our tried to say that if you take the definition of admission which includes something about lawful entry and substitute our definition of entry then it doesn't make sense well that would be true but we're not substituting the whole definition because entry in compass is both the lawful entries which follow inspection admission and the unlawful ones where they evade inspection but if you just substitute the portion of the lawful entry then there is absolutely no no conflict and i would note also that this court also again anderson vs napolitano six eleven have third to seventy five in two thousand and ten decision noted that a person who had been previously deported and not obtained permission to reapply after deportation managed to get a visa came into the united states was inspected admitted had a stamp on her passport saying you've been admitted but this court found that nonetheless the entry was unlawful for purposes of reinstatement because she was not eligible to be admitted even though she was admitted by mistake so that clearly shows that the the question of admission is just needs a little work and that's why the board is having to revisit the issue so many times but it has not revisited the issue of entry that has been solid for a long time and i would also note one thing that i think is perhaps the clearest thing and that's what words noted in matter of subsumed the other so you cannot find that congress intended them to be the same because the presumption is you know each word in the statue has to have meaning and that's the meaning that congress gave it in two thousand and fourteen telling on versus holder seven sixty one f thirty three thirty six specifically citing pierre and listing the four the elements there they collapse it into three that make territory of the united states being inspected by immigration officials or successfully evading inspection and they rely on you rely on a third circuit case from above for ira ira showing that this court considers that the law  changed between now and following ira and that the court there continued the government that supplies the same definition of entry across statute says well it should in the absence of a reason explanation for the change interpretation or relevant distinction between the statutory provisions the government has no warrant to you chevron deference to take opposing positions about the same concept just because it helps them in some cases to do one thing and helps them in other cases to do something else that's invoked it's about entry so i would argue that where there is no reason to explanation for the change there's likewise no relevant distinction between entry in me ion a it was found of former in us c eleven zero one eight thirteen a and that definition was eliminated and it was replaced with the definition of admission so she's arguing that we so essentially rely on a definition that no longer exists and the government argues that this is a huge gap in the statute of congress sure there are places in the i am where the term entry is still found but that term is not assigned and that is where a huge gap exists what does the term mean when congress eliminated the definition didn't give us a new definition but it still found in portions of the i a e a and that's where the government argues this court can get to step two and can look at the board's interpretation finding that  you know the board in this case took a step back because it isn't defined in the morning and sort of looked at the statute to figure out what is an entry now mean and looked at for example the definition of admission like miss low pointed out it's touring the united states which only occurs pursuant to inspection and authorization by an immigration officer so the board found that we don't have this umbrella term entry that now covers both situations when an alien presents him or herself at the border and is permitted to come into the country pursuant to inspection and authorization and the opposite of that when an individual sneaks into the country we now have to bifurcated terms we have a lawful entry which is synonymous with an admission it only occurs when an individual is inspected and authorized to come into this country and an unlawful entry and the government argues that it is reasonable that in this particular circumstance that this lowe's adjustment of status it did constitute an admission and consequently also consume also constituted a lawful entry because we look at when congress made this amendment replacing entry with admission and it treated it in title that amendment treating persons present in the united states without authorization as not being admitted and here we have a situation where ms lo she law unlawfully entered the united states she snuck across the border and she later adjusted her status and that adjustment of status is the only thing that authorizes her to be in this country she certainly is not someone who's in this country without any authorization whatsoever where is to adjust status you have to already be in henri i would argue that you know it's really important not to sort of look at a dictionary definition in this case to really look at the context because we're not really talking about a situation where somebody walks into the kitchen or enters a living room we're talking about entering this country and because we no longer have that form or definition we have to take a look at the i n a as it now stands and what about our law that's given definition to that word i don't think it affects this case at all and i don't think s martinez and mark as looked at the language that was at issue and both of those cases and found that it was plain and unambiguous and i would argue that the language at issue any entry in this case is not plain and unambiguous because there is this gap in the statute regarding what it means we no longer have that definition that we used to have so that takes us to step two where is in mark cans and martinez this court was unable to determine that it was not able to get to step two because of the language in that unambiguous and i'll point out in marquez in pointing out mark his arguments and pointing out the government's arguments as to why an adjustment of status can constitute an admission and certain circumstances this court did say on page five when on page five fifty nine that the board's interpretation had considerable promise but it just couldn't reach that issue because the language was plain and unambiguous and specifically said is there enough ambiguity in the statutory cont to allow us to give deference to the board's interpretation in a slightly different context and regarding a slightly different term than in martinez and it's court so we conclude that there is not that was on page five sixty one so i would submit that this case because there is this cases are correct but distinguishable so marquez we're really looking at whether an adjustment of status application can constitute an application for admission and this court held well you know we have this definition for application for admission and so it doesn't sit in that and we have a discordant anywhere in the country's accepted your view of twelve to he said this particular statute i have not seen in my career and i've talked to other people in my office any case that deals with twelve twenty seven a one year i doing with what  any entry is it usually deals with whether the individual's conduct was an alien smuggling act i have never seen any case there was around this particular language so far as i've seen i think this is an issue of first impression so th just to be clear that the government so argument to us to affirm is the one you've made it isn't that there's an independent basis that we could affirm or act i think because it's a motion for reconsideration the only issue really is one of the boree made an er of law in holding that her two thousand and seven adjustment of status fit in with in any entry for the reasons that i gave and that's the only issue that's before this court very briefly the government i believe is trying to create an ambiguity that doesn't exist they do not address the socks that entry has not only been firmly defined by this court and other courts but also b a has never changed its entry its its definition of entry and it also runs afoul of the fact that congress knows her well how to say admission when it means admission and entry when it means excuse me and two thirty seven a one day they substituted admission for entry into thirty seven a one h they left only entry and end to thirty seven i'm sorry they had only entry rather than admission for entry as they have in two thirty seven a one and so i think that you can't say that congress didn't know what it was doing when it put the term entry here in it used it for five a but has been replaced i don't think it makes any difference because it is used there and it is used the congress is presumed to know how the agency has defined a term when it uses that term it doesn't have to be defined and maybe the reason that they left it out was precisely because the prior definition had not worked and that's why the b a and the courts asked up to the supreme court and had to come to new definitions of what entry me deleted the definition and now you say oh no it's worked all these years the does the definition in the statute wasn't working and there are big and the b i a my chance it has to do now with admission the definition of admission in the statute isn't working in the be a is having to come up with same welching it also includes us and it also includes it also includes the other so i think what congress did was say we'll let the agency define and treat the agency has already defined entry we know what the agency's definition of entry is that has worked for decades why didn't they just include the agency's definition of injury instead of believing their own well you'll have to ask them i don't think i think they thought it was unnecessary things they substituted one definition for the other and didn't feel that entry needed a new definition because it was adequately defined by the agency and accepted universally by the courts and i don't think there's any reason now particularly on this very skimpy rationales it is given in this case which basically cites another board decision for or a provision that it doesn't stand for because they're relying on blue print for the provision for their position that the two terms or interchangeable in the quote they have from is nothing but the saying that a person who is adjusting status is assimilated to the position of somebody who is seeking entry in like i said you know assimilated to is not the same as being bad and has always said but at the same time the board has always said that entry means a v c date they have said that they're assimilated to that position there's no conflict between those two and this decision from the b s a merely recites that quotation from boudreau as being it saw justification for finding that the definition of entry had changed thank you very much for your case under submission them before