mr ford next case please honour's good morning it please the court i'm christopher health and i'm here for the petitioners i'd like to reserve this timely file petition for review comes to you from an i j denial of the petitioners final request for a continuance seconded by the b i a e a and later the board's denial of petitioners motion for reconsideration in reopening based mostly on different grounds namely the president's executive decision on immigration which was made a day after the petitioners appeal had been denied a timely petition for review was also filed based upon that being a decision the petitioners are a husband and wife with two minor united states citizen children actually it's a an excellent observation your honor because what country you're from really determines how long and when you have to wait for a visa if you're right you know so it's always something we look at what country you're from because if you're from china mexico the philippines  you're on a much longer wait list than the other countries and they are set back to pakistan and yet they still proceed in this case in theory yes they can proceed but in practice no your honor because the subject to the catch twenty two here is the minute the wheels of the plane take off at this point they're subject to a ten year bar they have a final order of removal because they've pursued not only a b i a peel but the current action which withdraws their voluntary departure and that voluntary departure which is a discretionary grant issued by the i g below is automatically converted into a removal or a deportation order so practically no they can't just get on a plane leave wait for the visa to become and come back as the bard for ten years and that's something that's not their fault it's just a creature it's the operation of of the law which by many many people have said is a broken broken immigration law it's a broken system but they petitioned that j to change they already have a no they cannot it they cannot because that as it is the statutory construction if you've taken voluntary departure it's impossible so aside from the american citizen children that the respondents have they have a nine year old and a five year old the family has extended family ties here in the u s and including the lead petitioner's father who's an american citizen the lead petitioner's sister is united states citizen and so the father your  honour's for many years had filed a visa petition for his son when the son was about one thousand years old that these a petition was eventually approved but it was later revoked the petitioners claim no knowledge of ever receiving notice that the first petition was either approved or revote later the petitions were placed in removal proceedings when it went on a family picnic up in michigan they were placed in removal a new petition was filed by my office by that same united states citizen father on their behalf in two thousand and eight the i j a in memphis granted a request for a continuance while that new visa application was pending and that same i j also granted additional status no your honor that's the visa petition that's the visa petition that's filed by the united states relative united states a distant relative on behalf of the beneficiary in this case the petitioner the son and i apologize for such r questions but what what benefit there is that bring your client if he or does that bring in any alien it doesn't give them the right to stay in the united states and i've always been told and they would say for years u temporary visa no it's the actual visa it's like the way it was described to me years ago it's like a sandwich you have to have the meat in the bonnet and both of them complete the sandwich and you have to have the visa petition which is primarily the the petition that's that's decided by the department homeland security and then once that decision once that application is adjudicated then you can file for your green card which is the the informal name for adjustment of status green card and adjustment status are synonymous and then application is an i forty five so the i j initially had relocated and a new i j memphis was assigned to prior to the denial there were  five or six no i did not sixty between four and five but some continuous as requested by the government because they didn't have the filing that were other matters so but you know our written and verbal request at minimum there were four probably five  sorry finish any answer you have to judge seiler yes thank you there seems to be some dispute about whether your client is ultimately eligible for adjustment of status and at least as i understand the government's argument they're saying he actually is not and eligible because he's worked in the united states without authorization what what's your response to that he's absolutely eligible for adjustment of status under two forty five i which the government initially said he was not eligible for which was a provision in the law which allowed individuals to come out of the shadows to participate in the economy to pay taxes to obtain work authorizations for this type of application they would pay a penalty of a thousand dollars this is written into the law i n e two forty five i the intention of that law was to to include individuals like the petitioner who although today have work authorization he has it because he does have this pending i forty five at the time he had acknowledged he was working without authorization now we submit it's a red herring because the law covers and in particular specifically embraces individuals like that this is what the law is there for for individuals who have worked without authorization or who had come into the united states from the get go illegally the minute they've touched foot on u s soil they were not authorized to do so to forty five protects those individuals and it also protects individuals like our petitioner who came in here with the permission and consent of the u s government but overstayed that temporary visa what about twelve fifty that is that it applied to your client twelve fifty five a it just meant eight u s c twelve fifty five c i thought it was the government could be wrong the government  recent admission when they withdrew their argument he's eligible under two forty five i so if he's eligible under two forty five by that trumps any any other provision which would otherwise bar him and swing illegally what the government said it's not arguing anymore yes but they say not argue for the government they say regardless of that it's speculative and this is the core of our argument because a statement of the obvious that a visa petition is approved does not make it speculative speculative is something where a visa petition is filed in an educated whether it's a job based or a family based i don't know how of these it can be speculative it if it's approved approved it has been understand that because i have not seen case law that says speculative means of these or that's approved but yet through no fault of their own the visas are not right like the fruit of the tree it's not right that and that's not it's not a fault of the petitioners that the visas not right i checked this morning and the and the government alleges that the way time is six years away it appears that as of today this visa when issue was filed in may of two thousand and eight as of today they're working on visas and august of two thousand and four so you're looking at a little less than four years away and every month the state department issues these visa bulletins and you'd look and we look and we painstakingly see if our clients are eligible for a visa priority dates and if they are change that change it back changed our ready when you it has and it will change in the future but there's no guarantee it may regress there are some situations your honor where visas you think they're going to be ready next month but they regress a month or two there is your position that that  hold off til they fatten it make it really matter if it's ten years or twenty years well you know our position is that the rug should not be pulled under from you from situations that are out of your control you've taken advantage of the lawyer to forty five by you filed  family based or a job based he's a petition but now you find yourself and remove all proceedings you're requesting a continuance the i j a has a number of options a number of arrows in his or her quiver to choose from today years ago we now to administratively close the case even over the objection of d h s so if the i j a is not happy with the long and you know let me say first your honor that the overarching issue is not only the one presenting presented in our opening briefs it's not the color issue that was presented by the government and it's not the issues necessarily that have been argued by the parties the overarching issue that is this dark cloud over all of these cases is the tremendous backlog in the immigration courts today and you know it's tough to blame a judge for looking and becoming almost fixated with the wait times but this is something which is a statement of the obvious and case law does not support such a finding even if it did the i balance the positives with the negatives and to pull the rug out from a family and mix status family without addressing these issues that we brought both orally and in writing is an abuse of discretion i'm not here to say we should have a bucket list of items that a j should look at which constitutes an abuse of discretion i think it would be unfair to put limitations on a judge because i have asked for continuances on lesser you know stronger point stronger points different points but you know sometimes they're granted sometimes or not but i do know that the judges have this wide discretion but to deny a continuance when the case law supports other types of analysis is really clearly an abuse of discretion i would like to say we know where that is it's going to be before the u s supreme court but nevertheless it was a benefit application to be i was wrong because they focused on that being a decision of homeland security and it's not it's a benef it please the court i'm christina greer on behalf of the united states attorney general there is one issue in this case and that the agency acted well within its discretion when it denied petitioners a motion for a continuance of their removal proceedings to await relief that would not be available for perhaps approximately six years in the future the standard the court is using here the abuse of discretion standard is highly deferential the court will find that in denying the final continuance the agency provided a link the and rational explanation that the decision was in line with its policies and precedent and that the decision rested upon permissible bases here three immigration judges conducted six master calendar hearings and three individual hearings over the course of five years continuing the case in total six times at petitioner's request to apply for visas to investigate and document the lead petitioners claim to u s citizenship that turned out to be contrary to law to document and argue eligibility for adjustment of status based on recapturing that old priority date from the first reason application which in turn are turned out to be contrary to regulation and to seek prosecutorial discretion from v h s after giving petitioners every opportunity to document and argue their claims that would lead to immediate relief or a lack of jurisdiction for example if the petitioner turned out there if the lead petitioner were a citizen the court would like to wrist action for the proceedings entirely the only potential for relief for meaning was an adjustment of status application six years in the future potentially the immigration judge concluded that yet another continuance was not warranted because the link of time until these availability rendered this claim do adjustment of status speculative addition to your position on the likelihood of an adjustment  do you think it pretty good or not too good it's impossible to say this point for one thing as the board and the immigration judge noted petitioners did not submit a complete application one of the requirements for adjustment of status is to establish that the applicants are not inadmissible under u s eleven eighty two one of the grounds of inadmissibility there is the public charge ground to overcome that the agency requires that applicants submit what's called an i six four it's an affidavit of support showing that there is somebody in the united states willing to take financial responsibility for this person if they end up taking means tested public benefits physicians here did not submit that form so they did not submit a complete application so it's impossible to tell plus there's a question of discretion it's possible there may be crimes that occur between now and then that could this case but so i mean obviously this stuff so complicated you all are experts immigration judge said these folks do have an approved i want thirty years application right  so that you know they've got that but they don't get the visa until their term in the queue that correct that's correct and we don't know when that will be but when they get that visa what let's say they know week hypothetically or some other similar couple did what does that these and then entitle them what rights does it give them nothing and what's the ok what's the purpose of the beaches the purpose of visas so that then an individual can either enter the united states so they would then present themselves at the border and say i have an immigrant visa that allows me to enter the united states a seven minute resident gets you in the country correct and went in the country which is another process then you do have the benefit of living here you have certain protections against removal that people who are not permanent residents don't have an adjustment status as a facsimile of that process in the states so that way you don't have to leave and then reenter the i one thirty what we're calling adjustment of status or is a different that's it's a different process so first you game that they want to get to here y yes so just tell me if i'm understanding should know better in this but the i want thirty is that like fictionally admitting them lawfully now to the country it's saying the i one thirty is saying that the relationship between these two individuals is one that once a visa is available would qualify them for that visa so it's a it is a stylish in the family relationship it's saying that lead petitioners father is a s citizen and so he qualifies under the three preference three category for a visa once it becomes available but it does not he can in a in a sense c here lawfully because his father's jobs are in the cities he's allowed to enter the united states lawfully is that right you know in a fictional sense yes the only problem the only other hurdle is actually entering because there are still some several stages of review and that sort of that's analogous to the adjustment of status process in the united states guess what i'm driving at is my rough sense of this and i just want to know if i'm wrong is the i one thirty gets them in a position where their status is cleaned up enough so to speak that they can seek a green card just for the status and that itself  discretionary is that a fair sort of rough description of the situation here in a sense the only there is one so that i one thirty establishes the qualify to adjust status so it's it's to say they have to get through the sort of fictional entry what things would they have to show to be able to get the fictional entry part to its adjust  status the person has to show that will one thing that the visa is available and one reason why the visa here is termed speculative is because at the time of the hearing in two thousand and twelve it would not be available for six years and the relationship must still be existant and that person must still be willing to petition for that person or for the applicant but also the individual must demonstrate that he or she inadmissible to the united states as a public charge there is a medical exam that must be conducted fingerprints which are run by d h ass as well as discretion  and those are the basically acquirements and actually speaking to a question that you had earlier about twelve fifty five c that is when that applies when somebody is adjusting status under twelve fifty five a it states that they are not eligible to adjust if the person who has worked in the united states unlawfully or has overstayed their has stayed here in a period of unlawful presence or without a valid status  that does not apply where twelve fifty five or two forty five i apply is so that sort of waves the issues under twelve fifty five c ok so the i want thirty says yup he he's your father he's a u s citizen yes and what that does then they have to pass a bunch of threshold stuff in order to be allowed to enter quote unquote you don't have some horrible disease you're not can be a public charge doesn't look like that sort of thing and then and then there's an additional discretion terminations about whether they should have to get adjustment status yes that's kind of were ok that's helpful and you're not arguing anymore that  he's ineligible for adjustment i suppose because he worked without authorization is that correct that's the one you were to withdraw that's correct ok now it didn't looking at the board decision the first decision from november twenty first twenty fourteen it's the second page of the decision which is that page ninety two of the administrative record the board actually upheld the j's decision on two grounds the first one was that in the light of the apparently long wait for visa veil ability and failure that was the first one so that it's speculative that relief will be available even six years in the future the second was failure to otherwise establish prime aphasia eligibility for adjustment of status so which goes toward looking at the previous paragraph stating that the applicants did not file a complete adjustment and then the board goes on to say and it appears they may not be eligible but that isn't really a base that's not the crux of the board's decision it's that the applicants had not heard the petitioners had not established prime official eligibility through submitting a complete application and so even though that portion of the decision was incorrect about the may not be eligible based on and it says entering having worked in the united states without authorization and having failed to maintain their status the overall crux of the board's argument is the long time until visa availability and not having submitted a complete application for the court to review and the board's decision is firmly based on case law in matter of raja the board of stated that even if an applicant has the case it's a matter raja was aboard case and it cited an eleventh circuit case chalk hill which was the one where the visa was not yet granted but the priority date would be only two years away i mean i guess your point is this is discretionary i mean it's it's discretionary how they're going to manage her docket how many continuances i mean these folks probably would have a shot at ultimate relief but it's speculative i guess as to why and it's not clear in your view that they would have favorable exercise of discretion regarding just her ok it's correct you agree with opposing counsel that that they can't continue this case if they're run though that i understand that that's an other case not necessarily the end of their case they can come back although he was ten years subject to the ten years but there's a waiver of that where an individual can show that the failure to allow the family member to return would result in extreme hardship on a u s citizen or lawful permanent resident parent or spouse here petitioner hazell a u s citizen parent and so could qualify for that waiver there would be a second hurdle which is the fact that because so the ten year bar is actually it results from petitioners having more than a year of unlawful presence here so once they leave it triggers this ten year bar to them returning it's called the unlawful presence bar however because of the removal order that's been put in place now they will also have a five year bar but that secular it is oh no it's concurrent but that bar can also be waived through another application that is essentially very similar them stances would be such that it would be too cruel yes and even extreme hardship is more than normal hardship but is not so high that it's difficult to get over the bar  immigration there's another standard that's exceptional and extremely unusual hardship that goes to a much higher level so the extreme hardship waiver would be something that they could apply for to come back once that these a is available and perhaps with as petitioners counsel stated the visas being available in two thousand and five if leaving now by the time they be able to come back the five year bar maybe even gone and it may only be the ten year bar that they would have to apply to waive and so if the court has no other questions then i would like to conclude by requesting that the court deny this petition for review thank you you i have three final points i'd like to make one is that we were not requesting adjustment of status before the i j a we were requesting a continuance demonstrating we were probably fish eligible because we hadn't approved at that point we had approved these a petition i want the the i want thirty that seems to be common ground absolutely and i was the attorney of record for shock out of the eleventh circuit that was an entirely different matter that was a labor based application it was in a family based  petition there was questionable speculation hindsight's twenty twenty but this is a family this is a slam dunk unless the u s citizen father is not his father he will be a come the green card in fact the previous i went thirty petition which was approved then revoked demonstrates that it's the same petition or same same application just five years later the i eight sixty four is a is a form it's a two page document which shows the financials it's  required it's certainly not required at the stage of this case when the adjustment of status couldn't even be filed because of course the visas were not current the prime official billet he is key here because we requested a continuance based on an approved visa petition so for the i j a not to consider the other positives in this case which are clearly evident in the record because you see it both written and orally was an abuse of discretion we're not saying this is seriously that the i j a must grant a continuance but we're asking that the i j a should look at certain factors presuming they go overseas to pakistan they have two u s citizen children you're asking these individuals to uproot their family simply because of isis the circumstances that would qualify this for the label abuse of discretion not necessarily your honor but these are the circumstances we wanted the judge to consent consider in at least discuss in her opinion and as the second is this court has ruled last month and i believe you were on the panel if the court found in guts versus lynch that the b i a fail to consider certain arguments in making their conclusion and because of that it amounts to an abuse of discretion so again we're not asking the court to create this bucket list items one that you just mentioned but we're asking in these situations where it's a close call when you when you have positives that potentially outweigh the negatives you consider the thing that makes it less of a close call i would suggest is the numbers of continuances and the numbers of years that the that went by as this went through the system that's the overarching issue i think that's dark cloud is  the backlog you know be honestly i don't mean the backlog i mean the procedural history of this claim it's very common with many cases like this they've languished for years and years and years real real quick i mean the government argued he's ineligible for adjustment because he worked here illegally the government withdraws that the i j a or the board in any way rely on that rationale they did and then and then in the government the government just elaborate on that so now we know that they're wrong to be