by filing his application for extension that was pending when he filed his adjustment but that's not what we're arguing i want to clarify that our argument from the district court to the agency is and has always been that even if you fail to maintain a status he was still eligible for adjustment through the no fault of your own or technical reason exception  so again we've always conceded that he was not unlawful status but the law says that even if you fail to maintain status you're still eligible if it was a no fault of your own or be a technical reason  and so it would be antithetical to our purpose to argue no fault of your own if we are also arguing he was in status that's an exception only actually can ever apply if he felt to maintain status i mean if you think about it how can you argue that your failure to maintain status was through no fault of your own for a technical reason if you were in status the whole time you've got you've got a i mean there's two things that are troubling to me the st one is that he waited to the very last possible moment before filing for an extension well i really don't see the relevance in that i mean it's think about it like filing your taxes half this country files their taxes on april th and they don't get penalized for doing that except that you know you're going out of out of status the following day or two days or two days later i mean that's he certainly could have anticipated this a little better medical benefit the nd problem is that the government decides not to give him the extension so he doesn't have the extension that he's that he's out of status let me address the for the st point as far as the then the order of the order in which everything else occurs in the sort of interlocking and overlapping but that it under the way that look you have to understand the circus as he came to the united states and be one business busa to invest in a company start a company and get the company up and running so it could be running smoothly without his  intervention and he filed for an extension so he could get more time to do that and it was approved and he was trying to get it up and running and but it was still needed work so we filed the nd extension which is what was the delay was and now can you repeat the nd part of the quotes where the question is the brought the problem is that irrespective of when he applied for it it was it was turned down so you at that point he's out of he's out of status that goes back to what my initial point was this exceptionally would ever apply if he was turned down the the same regulatory framework says if it was approved then he was in status the whole time he's in status the whole time then we don't need to even get into the technical fault of your own  well if an application for example might be lost for a while you might be might be lost for two or three months and then we and then we find it's a well you went out of status in the meantime but this is our fault we talk about your bike filing cabinet and lost track of it well i think you know at this then you're included in the records says that if the extension still pending when determining the no fault of your own status if the extension still pending and you find they're eligible under the no fault of your own just close the extension that's  that it's important shows that not only is the final outcome of the extension not dispositive but it's also not even necessary to the determination of this exception and this exception again it would never there be no factual scenarios where this exception  plies i mean the law says it applies where you have at the time of filing or just that you filed a timely extension and the service had not acted on that so says nothing about the final outcome would have to add language in only if it's approved and all we're asking the court is to look just at the plain language of the law you know this court has said that just as we cannot legislate from the bench the executive cannot legislate from the oval office and what they're doing here is trying to advocate and it's a good turn of phrase yeah i don't think it could've been put better than a one to quote i scored some brownie points but look that's really what they're doing here you know they're trying to add language that's not found in there and by doing so it essentially races this whole language from the regulation there really is no scenario where this would apply if it depends on the final outcome like i said if it's approved then the no fault of your own section just doesn't come into play because then they've been in status the whole time and they've said that in their brief that we're the extension is ultimately approved page eight of their brief believe or not so it has a record somewhere the extension does get approved the applicant is considered never to have fallen out of status so then they're eligible there's no question of the no fault of your own or technical reason exception paragraph k played any role in the analysis you're just focused on seek well i think that was a point of confusion i don't think it plays a part in the it does generally so how it works is subsection c the no fault of your own exception or technical reason exception that applies to every applicant for adjustment of status whether it's family based asylum employment based and then subsection k is a additional exception there's other exceptions in that same statute but subsection k only applies to employment based applications so under the employment based application  process where they're out of status that it's st you go to k and say well if they're out of status was that one hundred and eighty dollars days or less if so then they're eligible if not then you go to what was it no fault of their own or technical reason and  i would direct the court's attention that matter to the portion of my brief discussing elem already which really judge preggers and really cleanly lays out the interplay between the no fault of your own and subsection k and describes it as an extra layer of protection for employment based applications the question was pending for an unusually long period of time yes the normal processing times as upright now i don't know what they were then are two and a half to four and a half months and this was pending for about sixteen months and so it left mr autists in a place of uncertainty which he prejudice by that if would things have been different in any respect if they had within three or four months yes so if i mean the thought obviously two outcomes that could have happened if they adjudicated it within that time frame either they approved him and then were not here he maintained status or he could have decided to leave the country and then just apply for the visa the immigrant visa through concer processing without any sort of harm but he was relying on the plain language of the regulation which says this is the rule here these are the facts where the rule applies and those facts describe this case so you know he was kind of left in limbo because it took them nine months to g are not exactly correct so he applied for that st extension they didn't approve that till march th he didn't get it you know but the post it took another ten days to get the notice so it was already pretty close to in the beginning of april by the time he even got the fact that his extension it st extension was applied so he really didn't have a lot of time to file for the nd you know he has to go to the attorney turn his time prepared then there's an additional post time to get it to them a gracious service so you it's a generous amount of time for the agency to decide this question it's not a last minute sort of sort of rush and in the ordinary course of things the extension is denied now isn't he just out of status and  just over this case just over a few extensions tonight he's been out of status if it had been denied prior to the filing of the adjustment of status well yes but then we wouldn't be here arguing that it was the own in that case he would provide certainty as to his status and would have been able to make a decision based on the timely adjudication as to which route to take and he like i said he could have just left the country and applied for the visa that so if so let's let's change  utilizing plenty time for the extension and he has to he has to file the application before the before he gets the education on the extension and then the extension is denied oh well let's  plenty of time before the expiration of a status and but it's not denied until after he filed his application so you're saying i just want to clarify you're saying that if he had filed the extension well ahead of his expiration and then after his while that was pending but his status expired then he filed for the adjustment and then it's tonight will i mean i think we'd still be that's exactly where we are here look every court that's looked at this regulation has said these force in areas to find it in the regulations by themselves just limiting it to four is unlawful and  impermissibly narrow is contrary to congress intent that this is an equitable provision and now we're not arguing that we're not arguing we agree with those courts but we're not we don't even need to make that argument  he falls under the plain language of one of those regulatory criteria i mean it says if it's pending at the time it's filed he was relying on that language of the law to make  decision he could not have filed his extension earlier your honor that doesn't depend on the on the government's decision to grant him the extension well every court that's looked at it has not focused at all on the final outcome i mean their policy manual says is long as it's non frivolous and meritorious in fact the those phrases when read together have actually been interpreted in multiple immigration context concept context by the board of immigration appeals and precedent decisions  matter of but has a very lengthy statement it says it does not need to be approved it just meritorious in fact would not frivolous does not mean approved or it has to be approved it means that it could have been approved and here he filed an the problem with that is that if that's the standard meritorious in fact a non frivolous that was never considered at the agency level there was never a finding for felony then it was never even a consideration of whether it was meritorious and what your necessarily implies that there is a technical reason until they act and so here of the question is when he filed his adjustment was there a technical reason and all i'm asking your owners to do is two for failure to maintain continuous lawful status during his time in the us was based on a proper interpretation of the relevant statue and regulation in this case the agency correctly concluded  maintain continuous lawful status put differently plaintiffs can only benefit from this regulation if he filed an application to extend his nonimmigrant status that was meritorious in  one status expired until january twenty six two thousand and seventeen when he filed his adjustment application is considered a failure to maintain lawful status u interpretation of the exculpatory provision and what a technical violation is is contextual because it has to take into account the fact of the meaning of unlawful status and in the regulation at two hundred and forty five point one the one dollar to two dollars i it defines unlawful status for those who are plying to extend their nonimmigrant status it defines that period as only becoming unlawful once their application is approved if the application is approved then the view is that they were in fact in a mall full status during the period that it was pending and then when it's later approved they  applies because it's the view that when an individual is applying to extend his status the time from when his current status his nonimmigrant status we're talking about the time when his current nonimmigrant status expires then the very next day that period while he's his extension is is being adjudicated that is not considered lawful status that period of time only becomes lawful once the agency approves the request for the time because the agency approves the requests they don't deem him to have been in unlawful status during that time but then that kind of goes to his point well then when does this ever apply because the exception is an exception to being in unlawful status and so if the technical reason if if the subsequent approval of the application means you were always unlawful status then the technical reason actually never applied because it's an excuse on the face of the statute it's an excuse from being in on lawful status i think the way that i view that way the agency views the consideration of the reason why it has to read it has to interpret the technical violation to be a can text role can text full term and that it has to include considerations of what it means to be in unlawful what what it means to be in that unlawful status period and it has to include the idea that an application extension status nonimmigrant status application has to be meri torious in fact is because when having agency in action agency an action has to be the but for cause of that because if an individual just like let's take his example if an individual is applies for if an integral part is to extend his status and his status before the day before his his current status expires in this case he asked for an extension of his b two status that can only be extended until for six months and a year of fool you can only be in b one status for an entire year i'm sorry i meant be one if he had actually if the agency had actually  application within within three months instead of issuing a request for further evidence because it questioned whether he had nonimmigrant intent appropriate for that type of visa instead let's say the agency approved it it could only have approved his status until october six months from april is october so then what would have happened between october and the time that he filed his adjustment application in january he would have been in unlawful status under that he might have done something else we just don't go know because he sat on the application for sixteen months i wanted to ask about the the regulation because the regulation says that the through no fault of his or her own or for technical reasons applies when attacked and it says a technical violation resulting from inaction of the service as for example where an applicant establishes that he or she properly filed a timely request to maintain status and the service has not yet acted on that request that's exactly his situation and he could hear hear me out this is why i'm i'm troubled by your answer before that if they approve it they're always unlawful status because then this never applies this is says that the technical exception from unlawful status applies when applications are pending and under your view of things it never applies in any case because if we grant the application they were always unlawful and so they don't need the tactical exceptions that's where i'm i'm having trouble understanding this the technical exception the technical violation the way that the reg explains it is that it says and the way that the agency interprets it as the district court recognized in its decision the example that is provided as when an individual files in parentheses it provides the regulation provides for an exam the agency provides for an example that doesn't that doesn't preclude the situation of the  reading of having agency in action be the but for cause meaning if his situation is not entirely accurate because when reading about the agency in action as a but for cause would make an individual situation who status expired while they were while their adjustment their extension application is pending mean that if they if once it gets approved it gets approved only during the period of time that the nonimmigrant that they're eligible for under that nonimmigrant status so that presume that accounts for the situation where an individual has filed a timely application they then file for adjustment of status but then their application mentally gets approved by the service then the agency in action during the time when this whether it's three days or whether it's three months if they get their application approved it gets approved for the period of time that they're eligible for it's not that it gets it's not that the service action itself in approving the application grants that whole period of time it's what they're eligible for under the non immigrant status so in reading the agency in action as being a but for it it counts for the situation of whether of when they are out of status but their out of status for the time period that their extension request ultimately gets approved for and it's just the lack of agency action in acting upon that that application during the time period when they had gone out of status during that brief time period between that and the adjustment application that would be the situation  technical violation it's the agency action that caused it now it also accounts for the period for the situation of if they had filed it and the agency had acted it a it had acted within the timeframe but it had denied it it is possible that at that point the agency in action the agency in action resulted in a in their their being out of status but that at that point it presumes that they would leave the country and that they would seek some way to there's no guarantee that they would leave the country so and under that circumstance that wouldn't be agency in action that caused a lack of status because the agency acted in time let's say but they just chose not to leave the country so that's why it's a little bit it's a little bit dense but and it it's complicated because the way the agency has interpreted textural violation as set out in it's in the regulation and its interpretation of that in the memo in the new field memo that's been in existence since two thousand and eight and in the policy manual that controls all of the adjudication of adjustment of status applications and considerate considerations of lawful status for purposes of qualifying for adjustment of status it has the agency interprets that in  manner because it has to take into account all the various permutations of what it means for an individual to be in in lawful status and what that period of time from when the definition the other definitions of what lawful status means and that's what the district court recognized when it said that the agency interpretation of this if this regulation and agency inaction having to be the but for cause of a technical violation is the most reasonable and what controls under the circumstances of this case and it's unfair in simple and to also i wanted to clarify that again his situation is an example of why the agency needed to to to say that unlawful that technical violation has to be caused by the by the agency in action in that there not be any other issue because again if they had approved he when he filed his extension request three months later in july the agency issued a new a request for additional evidence and that was because they were concerned whether about whether he was eligible for this for the status whether he had nonimmigrant intent and he responded to that in august so he had noticed that there was potentially a problem with his extension application so even and yet he did not do anything and for nine months and then filed his adjustment application but even still would still exist from october to january it would and that's why for situations like plaintive that's why the agency interprets the technical violation to be a contextual issue  a minute on the clock fact if that is the standard the scope of review under the a p a is that decision articulated by the agency at the time of decision making that was never raised by the district court never during the administrative process the st time that was raised was by the court this court by judge dolly gee this court has said that the courts may not supply an a basis of denial not articulated  the not articulate by the agency itself you're referring to which point the meritorious in fact that is in the policy that appears nowhere whatsoever in the administrative record at the agency adjudicative level so that would have been a live issue that was never addressed  nd their position of sole for sole cause it's the same thing they never argued that at the age of or before the district court that was supplied by the judge that's not an agency interpretation it doesn't say but fo in the policy manual so i'll close by just how asking this court to look at the plain language of the regulation thank you