there are three issues in this case but i'd like to begin with a couple of very important overriding points that applied to this case first of all congress extended application of the  to the northern mariana islands with a transition period the clear purpose of congress with that transition period was that to have the administration and enforcement of u s immigration law  in the c n n my which had previously in forced immigration laws on its own to be implemented flexibly and with sensitivity to the unique circumstances of the sea and of my and the people who live there unfortunately as this case shows in many other cases that show that's not really what has happened and that principle of flexibility and sensitivity is part of the problem with those kinds of decisions that we end up having to bring this excuse me having to bring to this court the second important point that i want to make is that in education in which all of the elements all the material elements are defined or deemed to be established is not a real adjudication is that because you being legally i mean is he a person from age you know sixty would otherwise apply if it applied absolutely yes your honor and why well first very simple reason first of all a physical document called an umbrella permit is not mentioned in forty eight u s c eighteen zero six an umbrella permit is something that the c m night government implemented to try to smooth the having a copy of the order is that sufficient you have to have sand paper and the words well there is a paper that is called an umbrella permit but forty eight u s c eight hundred six does not require you to have any specific evidence or documentation of your lawful state status under c and in my immigration law it says if you have lawful status under c m i immigration law then you're entitled to the a pregnancy discrimination claim and there's a decision and it's in the record and i think it's in my brief also there's a decision of the commonwealth supreme court rivera case that explicitly says that aliens who have ongoing contract or constitution or other claims and he claims involving their property interests which clearly this was a claim that involved her property interests are entitled to remain in the commonwealth and work so long as there are cases pending and so you agree that this argument is for close by minto correct well yes and no your honor i'm in talk minto is a very difficult case to deal with and but i think that mental can can be distinguished there are a number of ways to distinguish mental i think also that mental needs to be overruled but obviously this panel isn't the panel that can overrule mental but mentos should be narrowly  salute it was import into the elite it was important if this you know my thought that they were overstayers first of all you need to recognize that there's a whole lot of ambiguity on who was who was not an over law basically the umbrella permits were for anybody who wanted to claim legal status is correct i go i was here at legal argument and the commonwealth's purpose in doing the rather permits was to ease the transition the commonwealth was a very concerned about losing its labor force they even challenged it in federal court which i thought was a foolish challenge but we're in the in the d c district court  r she did apply for an umbrella permit the problem was is that the commonwealth government was refusing to issue a brother permits even this was their own program and their own policy they excluded anyone who litigation was involved the federal claim from the umbrella permits they refused to issue the document to the people who had federal claims although they did it for all cinematic claims and they did then they did it  because of their animosity towards the federal government at the time and that's the only reason and that's in the record by the way i've spoken just to clarify she did she have a  particular document itself does not authorize her to work the c in a my although that although the case the supreme court case authorizes her person to work they still had t i department of labor they had to have an approved employer that was the system that was in place consequently that authorization document which shows her status can be inferred from that document but that document showed that she was intitled to be treated as legally present in this in a my and able to be employed if she complied with all the regulatory requirements that's what that document represented your honor i know as my time is actually just running out right now i do hope i'll be allowed some time for  context very different context the supreme court recognizes the very significant impact on aliens have been brought in removal proceedings you can't have applied the same standard and procedures unpublished decision that is really informative or instructive to the court is just basically accepting akki in the removal context and i think that would be a very big mistake and actually should be distinguished you please the courtly is the damiano and they have the attorney general nice to see you again you're on reason for the first time just a minute as a preliminary point this case involves two issues and that's the remove ability component and then did raise it in part no it actually the petitioners opening brief didn't mention it at all her issues were with regard to the physical presence component of cancellation the overarching policy concerns for those present and the but she didn't raise ability at all so we would argue that it's waived actually petitioner concedes in his reply to sister's counsel concedes in his reply brief that those issues were not raised in the opening brief but he this is a question of what was raised here as to exhaustion right there are you making it in slow motion or he means well no i just a waiver of the reply brief rate raises the room ability issue for the first time and petitioner asks the court to let that those issues come in belatedly because she switched counsel and because it's an important issue but you did have the opportunity to reply and it's a purely one legal issue and it's a yes yes even if it's not waived zero one eight fifteen states that an immigrant is every alien present except for those who have shown themselves to be in a particular nonimmigrant cabin but you're talking about intending immigrants so if we're talking about intending don't we consider what they're know the government's view as to why the terms applicant for admission and application for admission should be interpreted exactly the same well the the i need to find applicant for admission not application for admission as you as you mentioned there's a distinguishing phrase out phrase algy but the law has presumes that under matter of all does the presidential board decision and other decisions m matter of elam's whale of felix that it's an alien in this particular position is making a continuing application for admission she's present in the us without admission on the dat transition and she needs to seek admission she needs to seek inspection and admission so the law and the as the board has interpreted it is that a person in her position is making a continuing application for admission to the united i aboard case not in the c n n r a context which applies this theory of  this interpretation of what time for application for admission and the the assumption of application that applicants to the assumption about continuing application of the assumption about who is immigrants and you put all that together and you have el in the united states who has not been admitted or who arrives in the united states shall be deemed for purposes of this chapter an applicant i understand if i'm asking you if there is any case before the c situation which is so helpful i'm not sure your honor i would have to look into that and provide the court with a you know a supplemental brief for a letter after the fact but i can't think of anything at this time i mean what the court is asking is for transition i don't believe it's just being applied in the c n n c m i the marianna's contacts they do that mentor decision does cite to a board decision that discusses this continuing application for admission but i think that's a different question it's a nine and so it took a while for the department homeland security to try to determine who wasn't in their opinion who wasn't present with any sort of admission to the united states or who hadn't received a u s immigration document so they placed a lot of those people in  proceedings and twenty time in two thousand and eleven and then it had to work its way through the board and then up to this court these cases are all twenty thirteen cases they were briefed in twenty fourteen and we're just now arguing that it was aware of any cases because see the umbrella perman as petitioner's counsel state it is a creature of the commonwealth i know it was only created to give those people that were not in lawful status a lawful status so that on november eleven and that's why you you had this two year period or so even get the regs in place and get people to apply and get them these visas right if that's the way it was administered even though we are legal position is that people  person did not have an uncontested umbrella permit i was saying that even if they had an uncontested umbrella permit it wouldn't matter for this particular case yes because the whole point of this situation and these rule proceedings that everyone in the marianna's needed to ask the united states government for a visa or status and the people you're seeing before this court are the people that did not make that smooth transition there were twenty  permit the government would not have been able to issues initiate those proceedings at that time no the person would have had shown that they were applying for some type of either the c w one visa but there's all sorts of other visas didn't  point where i'm going or the b i a to answer my question my question is what did the umbrella what status did the umbrella permit give those persons who were not lawful period if they had that permit yes yes because the umbrella permit is not a is a status for the c m a the commonwealth and it was only intended to give those people lawful presence so they could apply for a s visa so they could still be put in removal proceedings under any any provision of the i and i with that narrow exception of what we discussed yesterday forty eight u s c eighteen zero six but that isn't an exception because there was nobody who was going to congress created a useless exception congress created yes you're if you want to point the well that's exactly right congress created an exception so something that didn't have to apply that never applies to know that people couldn't be removed for being present without admission because  ince because no normal person reading those words would think that but now you're saying that those same people were also in that other category and therefore what congress did was pointless well that's that could be it could be considered pointless and also i mean what came up yesterday was that congress is plan or a power and it may not be the most sound decision it might not be be written in the best way possible and there are a lot of interpretive documents from the period right after the passage that tell people that if you are a lot more lawfully in the c n n i you have this two year period without this any suggestion that no you can be removed under eighteen twelve a seven right there are documents from u s c i s saying that if you have a lawful presence on the days you write off your presence and see in a mine on the transition date right then apply but as in this case ms torres the transition date came and went and she didn't apply for anything she eventually applied for parole because transition period and she had no pending applications for petitions or visas that's and i had two thirteen and page one away i thought you said she did have it she did apply during the relevant period the two years it did but but when d h s found her and issued the a this is you know during the during the two year period it was during and after a right but when she was picked up by d h s s she didn't have any petitions or visas pending at that time she told the h s officers that she had applied for parole so then that was the collateral matter she had to pursue the parole with do that but to d h as an officer she didn't apply for any visas or permits to remain in the u s so since it was life for parole at some never granted her parole isn't as the way i thought she was in removal proceedings at the time she applied for probably was removal proceedings but there is no bar to somebody applying for parole during removal proceedings that's decided collaterally by d h us i just want to make one point clear before you know before i have my time is really up in that is that was really yeah i was really up there were over twenty two thousand four hundred people in the marianna islands in two thousand and eight that were lawfully present you're not thousand and eight there were no umbrella permits yet but they were lawfully present in the city and i am i right what i was so what are you saying what i'm saying you're saying that doesn't matter what i'm saying is the cases you're seeing are people who are overstayers or whose work permits have expired this is why these people sort of slip through the cracks or and it up in this position they were placed in removal proceedings because they didn't have a lawful work visa at the time of the transition and she didn't apply and your theory here doesn't matter i mean that's what i'm i'm having such a hard time with the government's position your position is that's totally or legally irrelevant right because the people who head the legal status of the twenty two thousand people with legal status under the sea and i could be removed the day after the right so the but the what yours what i'm saying is that you don't see those cases because d h s determined that they would place people in removal proceedings who hadn't applied for any relief who were there as they had two years hunter live on eighth avenue with these number eight you know my status and say that my status was not adequate it was there there could be people that had status in the u s and in the marianna's people who pretend they don't need right now anybody who needed it couldn't have it  seven is applicants for admission but it actually isn't in style for application for for of application for admission well the eleven eighty two eighty seven is quoted in minto and it says who at the time of the apple of my note was quoted but after that in their reasoning the opinion right in the in the opinion then they go on to quote a u s c twelve twenty five one which states an alien present in the united states who has not been admitted or who arrives in the us shall be deemed for purposes of this chapter an applicant for admission so that the eleven eighty to eighty seven uses the term at the time of application for admission and then any u s c twelve twenty five one uses the term is deemed fit for purposes of this chapter an applicant for admission cracked or not the same thing minto and the government relies on section twelve twenty five a one for deemed an applicant for admission and all of the reasoning flows from that aside from the fact that there was never any application for admission on november twenty eighth two thousand and nine there deeming that to be without mentioning it in fact even though there deeming that to begin the period of continuing application for admission so that they can get around the requirement of at the time of put of application for admission counsel how does that help you in this case  being overruled by this court or the supreme court well first of all i think the this court can express its views on mental although it can't itself with regard to say twelve twenty five one is that the purpose of that is part of iraq and the purpose of that is to fat funnel people being placed in removal into the correct type of removal proceeding it's not intended to be used as clearly didn't really actually address the issue of the fact that it's an immigrant that is required to have those documents and in fact that's fundamental error because she's not an immigrant and she and the government is adding a requirement to forty eight u s c eighteen or six he won that doesn't exist in the statute that you be applying for something with the federal government and in fact you don't have the aliens that were put likeness tori's they were put into removal never had the opportunity to apply for it for danny immigrant status which is premised underlying premise for that argument if you are in removal you cannot be given eleven eighty two d fife humanitarian or public interest parole which of congress surely intended to be used but so on that so the question is is she an immigrant ok well there was no immigrant status in the sea and why she was clearly a non immigrant in the cinema there is no evidence that she was had any intention to violate why and starting a family that's ridiculous but that's basically what it comes down to that was read as suggesting that she's in intending immigrant there's no immigrant status under c n m i saw her lawful status under the se nonimmigrant status and congress provided a two year period of time to provide an opportunity for people to seek valid u s status that's a nonimmigrant period of time so in my brief i argued that she is de jury and not an immigrant and i would i would maintain that the court should prove that in this case and distinguishment though because mental never addressed the question of whether or not she really was an immigrant  this is why i also argued in my brief that given that congress in active forty eight u s c eighteen zero six will be the government has the burden of proof before they can use something like twelve twenty  seven like eleven eighty two eighty seven to show that the person is not a member the burden of proof is not on the alien with regard to forty eight u s c eighteen zero six the burden of proof is on the government they needed to eleventh circuit would have reached a different result with the same case the their decisions make that clear and an alien can't just because the u automatically be applying for something that they've never had an opportunity to apply for but also that argument is more minto addressed even though strippers aren't so they may not have completely explained the reason for no i don't think they address that because they don't talk about it they don't they don't mention it they don't you know that's there's no there's no reasoning on that question so they can't have addressed it because they didn't go through any kind of evaluation also i want to comment on them as because that's a presidential decision supposedly but about this is not entitled to chevron difference in this case the issue there was really whether he had aband eleven eighty two a seven but the alien had a prior to being put in removal i believe had a application for adjustment of status his adjustment of status when the b i considered the decision they concluded that he wasn't eligible because he had not been admitted or paroled he would not be eligible for adjustment of status because he had not been for immediate relatives of us citizens was required but the requirement of being admitted or parole was resolved as a policy by us c i s from the time that the covenant was implemented to subsequently and they resolved that by if they found that the alien was otherwise eligible for adjustment of status they would gra parole immediately before granting the adjustment this was the mechanism that the government used to implement the covenant section and the policy memorandum that was in that was cited in the footnote involved as