lady and for the government on appeal that's almost all that this case is really about but they never mention visa availability below they never litigated it below they never mention it in their briefing they never mentioned it in argument in the district court and now they're asking this court to take judicial notice of some facts to support an argument that they never made below we submit your honour's that you shouldn't let them do that we never got a chance to address their facts or their argument below because they never raised it the district court never passed on it because they never raised it and if they had raised it below we could have addressed it factually  the she couldn't become a citizen the record evidence shows she was in the process who wanted to and he couldn't marry her and if you had done that he would have had a visa immediately available without any waiting because he would have been the husband of a us citizen we now limited to the prejudice issue because the government never litigated that below and it's trying now to litigate it for the first time on appeal and without the documents the government has nothing it can't deny can be reconciled with who it is to say that in hernandez what the court was saying was if she needed it she already had it and not she needed it but you she needed it she satisfied that that that requirement whether the defect prejudiced him and so i don't think that the court actually even really has to address the issue excuse me whether the these availability is or is an then we can present this evidence about and immediate these are they'll of all to him as the husband of someone who was in the process of becoming a u s citizen i'd like to turn to the prejudiced issue because for the government that's really the only other lies i mean really live issue in the case it seems it was going on they were not there i'm sorry on when this was going on they were not married they were not married they have since done so and she could she was in process of becoming a citizen they're still married they have two children and she doesn't seem in mexico every other weekend so i mean this is a live in viable marriage and he's very if they're married and they have two children why can't he go t issue the government says that we have to show outstanding equities and i would just that what we have to show is that there was a plausible ground a possible reason to believe we could show outstanding equities to an i  united states despite the fact that much of that was without legal status and his family life his family ties his partner children parents grandparents killings all of them here that case it's a matter of regard  that they could have done that look while they do now but at the time first of all there's nothing in the record to say that in fact have been married and i do think that's important because even at the time of the hearing there was no evidence of that but you have to look back at this deportation happened nine years  based on that and it would have been done in this context soley for immigration purposes the only basis on this record in which the defendant and i think backing up by the way i mean we point this out in our brief that even if he did do that at the time of the deportation hearing she a permanent resident and so even as a to a preference category he was not eligible at the time and he remains not eligible under a to a category i mean those are the issues that we face you have to look at the time of the hearing and whether the finals eligible i mean status you can use that relationship which is what he's saying should have happened in fact here and secondly even if he had got married his spouse would have been through a permanent resident alien i so this preference category would have been to any and und which is what he's saying i mean again they're saying they are still just in back while his wife could have become a citizen down the road and then he could have claimed it as a spouse of the bride i mean you have to really look at the time of the hearing it was on this view of the time of the but i mean i think in the context of outstanding equities if that's difficult to do is the first circuit indicated in china unfortunately a number of grounds you see like length of residence family in the united states employment home ownership deportable many people who apply for adjustment of status have done nothing wrong that's simply their way of getting legal permanent resident status and you're talking people who have no criminal background nothing that disqualifies them from entry in the united states so when you're looking in that i think we can look at the under current circumstance but i think it's important to recognize in the context of this case this is a conviction this fire and protection of the congress is treated very seriously in fact so seriously there is no grounds for deportation really for the  in the country approximately twenty years from one years he had several children well i think it's important to recognize that fact and i was focusing on the conviction first second of triad several children didn't do well but i think we have the nature that you had two children at the time but look into the nature of the relationship he had with why it doesn't say in the p s r just in the case that she took the children to panama and he had a kind of a hopelessness around that situation there's no further explanation of the record regarding significant other that he has begun dating we point out our briefing only began dating her after immigration proceedings or at least around the same time immigration proceedings were commence against him which significantly downplay the  that is that is true but it is traditionally that factors that come into play after you immigration consequences attached are entitled to diminish weight and i don't think it's not as love as entitle to dimini given the context of the deportation proceedings this particular fact in the outstanding equities inquiry is entitled to diminish weight and i mean it's important to recognize i see that i'm over my time and it is important to recognize that it is outstanding equities and so i mean you really it really is important to establish not just that you have facts like family here but that they rise above significantly above kind of the other kind of families to stay together but it does require the kind of equities to be outstanding when you have a serious criminal offense i mean it was defendant's crime that put him in the situation that he's in now i mean that's what triggered the deportation and triggered him forty forty two the regulations the c f r to forty three point one three you really can only have a reasonable adjournment of the proceedings and given that nine years later it still hasn't reached even close to  purposes on this record there's no showing that again there's no even showing that he ever got married to the individual even at the time seven years later this was done in the district court which i think belies the suggestion would be done for anything but immigration purposes and in fact they were not married i mean the only reason he would she had already given birth to a first child and she was pregnant with her second child he tells the immigration judge himself that his children are seven nine and poor and that his girlfriend is pregnant he had two children with his first wife he was divorced from her and so the the the youngest the youngest of his existing children at that time was his first child with with ms s q l heard that he was not married at that time however she wasn't p r as the government and the only evidence in the record i mean the evidence in the record doesn't stablished that she was in the process of becoming a citizen at the time of his deportation hearing the government has had rather a lot about the presumption  marriage that it contracted during the pendency of deportation proceedings but that presumption is rebuttable among other things by the fact of the birth of children which shows the legitimacy of the relationship and the case last says deportation hearing that this was a ground of relief and had he had i mean had he had he understood that these were listening to tory requirements for getting relief then he could have taken all of these before no your honor only that balance out any change that might arise from the assault with the firearm conviction his length of time in the country although the purser and i think that these factors are garden variety the hearing that was twenty five years old so he had lived here just as long and it doesn't matter that some of that time was spent without documents his family was here his life partner children brothers and sisters parents and grandparents he