number thirteen three two seven nine robert michael stand off the horses eric h holder arguments to exceed fifteen minutes for class mr mosley for the petition i and then later adjusted status to permanent residence very narrow relief in the form of statutory eligibility for a waiver under section two twelve h of the act immigration act based upon the plain language of that statute  so that at least and the language chosen by congress so that at least he will have the chance the opportunity to preserve his life in the united states with his unit u s citizen wife and six u s citizen children we  this case he would have the opportunity to return yes he would that's he would be restored to permanent residence because if we succeed here you would vacate the board of immigration appeals decision that would restore him to lawful permanent residence he could them return to proceed with  his application and that would at best you would make the application for a waiver and then that would be within the discretion right that would that would be the evaluation of hardship would be within the sound discretion of the  those are pretty hard to get these days those those are those are those it's a difficult standard and we have to show extreme hardship admittedly we have australia as the country we have i believe sufficient psychological and other family issues that at least  economic issues as well as before but it's not before you but i mean it's hard it is a hard but by night by upholding or following our position here you don't guarantee by any means that he gets merely he's merely seeking a chance to apply that's clear thing the limitation that congress grafted upon that that form of relief and the definitions that congress enacted as part of iraq we submit may commit in title to this because that limitation applies only and congress you specific language only to those who were admittedly to the status of an alien lawfully as a permanent resident and congress specifically defined at mit it as intrigue after a lawful inspection mr stasi did not get his permanent residence that way he got it through a just man of status language pardon me no it's questionable whether we should look at legislative history but this language was sort of tinker and it was tinkering with two to achieve its present form and i think that's the range it's just it's just i mean you can argue that it that it makes sense to do this but it's a kind of a strange argument that this is a logical well well i mean for ticket that this is a cool year something that al q will your would get it is this this particular statute it imposed tremendous obligations and burdens upon the government in many areas and i think as certainly the case law suggests the martinez case and others that have adopted our position that congress was going to proceed in in an incremental fashion and that's and that's and that's ultimately what they did hear it and i understand but it's kind of a peculiar increment as well well if you think it's kind of a peculiar and in increment it seems to me what we're basically doing here is trying to figure out what to do with language which appears clear but which does something strange well i don't i  don't i don't i don't think that i don't think that it does something strange what i think is that it nearly defines the categories of people who are going to be excluded from this important former elite if congress wants to change that they have the opportunity to do that in but it's narrowly defined as i think drudgery the said in a certain strange way because it acts to borrow are people who came in as lawful permanent residence which would seem to be you know one hundred percent upstanding but it doesn't bar people who came in illegally and it doesn't bar someone who comes in as your client did and adjusts within three months but it does bar someone who comes in lawfully and has been here for six years right because there's the seven year provision which applies to sneer or someone who enters lawful as a law permanent resident but wouldn't bar your client because he would have been but i mean congress congress could have and we don't have to speculate about what congress did or did not do in terms of the basis for for what it did here the government the government special litigation has issues you don't you have to find any rational basis for any any of the any of the distinctions here as the courts that have upheld our position of said congress could have chosen to proceed incrementally my right of the i sort of rambled through there but am i right about the way this seven year park would work that is a person who enters as a lawful permanent resident commits a crime and is caught six years or he did but as a legal matter he was adjusted within three months so he could have committed the crime and been caught in the fourth month and he would still not be barred that yes that is correct that the stat have been of that sort let me take a slightly different tack because i've read all of the cases and in several of them even by the majority that's taken your side you will find language like tortured language awkward language you know not just for the government's position but for the language as well and i guess my question is whether doesn't that point toward an ambiguity in the words who been previously admitted as an alien lawfully admitted because when you would just help me here but my reading is when you adjust you are adjusted to the status to the coming a permanent resident isn't one way of reading that that the intention was in effect the reason for this weird language i can almost see some staffer saying oh you know adjustment makes didn't do that he had a better staff or they might have it well that made all that a bit well but that may well be but even within roughly a year after the statute congress was going to amend it to in effect do what i just said they could have done but they didn't do that i mean we give me that was well what it was ninety six ninety six and ensure that then shortly after iras we point out our brief lamar smith the godfather father of this legislation introduced  legislation that would have amended the statute to in effect affect the government's position and as for example the martinez case which relies somewhat on that point up that wasn't inaccurate the real question and the other point that i think will couple of other points here is that the cardinal rule of statutory construction of void surplus you cannot take a provisional law and  and that's that's what the board of immigration appeals decision does under these circumstances i would also say that the construction but by they eliminate the word the phrase previously admitted i would also say that the construction that we're urging here in light of the plain language is fully consistent with this court's decision in zhang under us in a somewhat different context but the jank sharply distinguishes between admitted to permanent residence that knitted and saying clearly defeats the government's argument that every adjustment is a new admits exacts at least in that the right at the at the  privilege so when you adjust you achieve that so that us that is when you are but so therefore you are a person right lawfully admitted for permanent residence a kind of one of the questions is is it not pro talk is it meant to be in some sense not pro what the statute here or two weeks do that you can be edited as defined as a permanent resident or you can adjust the limitation that congress enacted here applies only to those good morning ma'am please the court kelly wallace for the attorney general the aggravated felony bar at section two twelve age must apply to all lawful permanent residents regardless of how they obtain status an order to avoid inconsistency is with in section two twelve h itself applying the strict statutory definition of admission to section two twelve age leads to the absurd result of excluding permanent residence in the united states from seeking this waiver that the family courts have ruled against you that's that the plain language is maybe you should have made that argument to some of those courts you know what i mean i would agree we are human as well haven't had a winning argument presented what this is the problem is the that the courts have accepted the plain language argument have only looked at how the plain language applies to the bar to the waiver without looking how it actually affects the waiver itself but still in all you're sort of you know coming up with arguments as you try trudge through the circuits  you've had to change as as the courts have ruled and we're trying to adjust to what the other circuits are saying knowing that that would be persuasive to this court and that's why we're saying don't go beyond what the other courts have actually done and think about what it does to the waiver not just the bar so look at who's eligible for the waiver under the plain language analysis if you look at page twenty seven of my brief i have the relevant statute or the respondents revive the reality of the statutory language quot us citizen or lawfully admitted permanent resident if it is a stablished to the satisfaction of the attorney general that the aliens denial of admission would result in extreme hardship to the qualifying relatives so they have to show that the denial of admission would result in a heart hardship if we apply the plain language and malice and use the strict statutory definition that means that the alien applying for this waiver has to show that the denial of his lawful and tree after inspection authorization would cause hardship that suggests that the the waiver was only available to those aliens outside of the united states who can show that entry is going to cause harvey would in our case he's already been admitted so you  sense you can't deny him his retrospective admission back in what nineteen what we're suggesting is if you use the plain language that the opposing counsel suggests it contemplates that this that this waiver would be applied for by aliens outside of the united states not aliens inside of the united states aliens who are seeking to waive a ground of an admission and admissibility in order to enter the united states very soon that is nial of their lawful and tree would i don't don't give me a right now people have to read this so what do they take denial of admission meaning what the you the government government says that it means admission can be the lawful entry after inspection authorization it became an n l p are those of already happened so do you interpret denial of admission here to mean the undoing of his adjustment government would say that in an alien and mr standoff skeptics position would be ineligible for the two twelve each waiver because he committed an aggravated felony after being admitted else i'm sorry i'm a buy in his position i mean a person in the u s who was adjusted we would so you say you never even look at these words no we're saying that it's that the board's interpretation was reasonable to interpret adjustment of status as an admission i'm sorry maybe i'm not understanding you i've tried to think the answer is that when you have someone who has adjusted status yamin on a temporary visa and then adjusted it as a became an l p r and now has committed a crime and they try to kick him out they will consider whether he there he has hardship or not they won't be categorically refused to do that because he was a just a status under the aggravated felony bar if he adjusted status outside of those circuits that have already ruled on the issue so for example this they would if he didn't commit an aggravated fellow justice deportable for some other reason you know then he of course then yeah it's just an aggravated felony bar but when you read this you have to give some meaning to the words denial of admission exact of the part you're pointing you on page twenty seven so what meaning do you give to that we would ok first i think and what do you do right now  some bureaucrat or a to talk each application can only be applied for in conjunction with an adjustment of status here in the united states so the admission that they're referring to is going to be the adjustment of status application so essentially it's if you deny the admissibility of that alien here in the united states today that is that that's really this is this raises a different say these immigration laws make your head hurt because this guy has adjusted his would be a readjustment in status the waiver itself is not he has to applying for the waiver in conjunction with a new application to adjust adjust status ok actually bring which then gets you back to the denial of admission and that's where your argument is and it couldn't be admitted because he's already here actually except mr stern are six eight he might be an australian so he can only be from a broad applying for this but we know that can't be the right interpretation because in the bar itself it references adjustment of status which is an form of relief only available in the united states so if you if you're going to read admission under the strict definition you have to read it mr sanaa could not adjust status from australia now you would have to come back while you could consular process which is the similar process but overseas but that doesn't think about all these circuits are because you've got a footnote about the ninth circuit two cases and i tried to track those to the these cases yes out of all of them you just got one i wanted to say i mean sometimes one person is right you know let me ask this was your post in council correct in describing the legislative history to be that the part that was plotzed into the language by the committee the conference committee was the second part rather than the first part which is to say the part which allegedly is parallel to the status or are i think i actually understood in the other way to say that it was the first admit that's right yeah so the words and alien who has previously been admitted to the united states were what was added and that's what gives you the hook of the previously been admitted previously on purpose to make it more limited you would have to come up with some other reason for if we're trying to figure out what they were they were thinking in their little office in the capital what could they have been thinking we don't believe it's completely clear from the pla that proceed to step to have chevron and look at the board's interpretation i think we all agree i mean we're sitting here trying to figure out what it says that's not clear that's not plain we need to see what the board interpreted as in the board concluded you know if you have statutory language that is just clearly not what reasonable people would intend you know that they were talking about twenty four day or thirty six day extensions and they inadvertently say twenty four years we all know that's wrong you know if we said here is a court and say well it says years we're going to apply it we're not acting as very judge mental judges but if they said something that was close like forty two instead of twenty four and it said forty two we might just say ok it's forty two if they don't like it they can amend it so to me those are different ways that a judge can approach language that looks strange you know and it seems to me it would be helpful if we knew what i think it was alleged given the historical perspective of a mission being considered the acquit putting someone in the equivalent place of knocking on the door to come in that if you read it in that context which is what the board suggests read they read it in the context of the statute as a whole but in this case particularly in the context of the waive not just the bar then it only makes sense that it includes adjustment of status but i would like to at this point also can you can hypothesize some even screwy rationale for tossing in the language somebody reads the languages says an alien lawfully admitted for permanent residence well you know there are several ways of getting to be admitted so let's put in some words about previously been admitted might have been a bad idea that there'd been a better staff or they would have said well wait a minute you've introduced a new ambiguity but somebody might have looked at the an amended language and say you know that's ambiguous let's fix it and what was th me with the ambiguity be that they thought might be there well that really that because there are several ways of being lawfully admitted i guess when i might have been too stark i've seen people do that to take something simple and complicated but it does go back partly to this sort of not pro tunc mess that is does anybody think that an adjustment should be considered kind of not pro talk obviously your adversary doesn't want you to i didn't know if that was something whatever man ever considered it's not not per time in the sense of somehow being retroactively admitted as a lawful permanent resident to the point of entry but i would like to bring up at this point that it may be premature for this court even consider this this to twelve each admission issue at this point because as mr mosley admitted before the immigration judge he had yet to file the application for the i one thirty which is nasca is going to need in order to even apply to adjust status before the immigration judge which is what he needs in order to apply for to twelve and i confirmed yesterday that app that application still has why i think it's an advisory opinion at this point because even if it were to be reminded he can't apply for the waiver at this point but in all in all of these other cases what was there always by read when i read them i saw once or twice there was talk about i won thirty years but in others the won in the sense that for whatever reason the government had already said we're not going to exercise our discretion is there any particular reason that in that case they had already made that determination were in it whereas in these other cases they at and yet made it very simple in this case right here they couldn't reach that because there was actually no application and for it to ever filed and there can't be if it gets reminded at this ok he hasn't filed the petition  in certain sense they're better off they're in limbo but they're in the country but i think that is part of the problem with not considering the waiver in conjunction with the bar is that if he's not eligible for the if he hasn't even met the preliminary requirements to advisory and what you want is a decision from some court that goes your way so you can give as well or alternatively we've requested remained in the motion that you referenced earlier he any good in that regard well if you remained it without an act addressing the issue for it to go back to the board for the board to specifically address jane as it was not raised by either opposing counsel or homeland security then we're not getting an adverse decision on the issue if you go back but i understand ok thank you right but i thought you said it there no i if i misspoke i apologize secondly the government's most recent suggestion to the issue isn't before this court is something obviously not raised to the government's brief not used by the board of immigration appeals and indeed if you look at the record of the immigration judges decision what was decided what was arrived here is that the issue of statutory eligibility for a two twelve age waiver in the first place would be decided and then a statutory eligibility was upheld it would come back to the immigration court so that the legal issue it is is unquestionably very clearly before this court secretly hope to lose one of these things and then go on are you in the supreme or considering my track record eighteen it says as a rigidly enacted the amendment applied to any immigrant who previously has been admitted to the united states which means that wouldn't have been limited even to l p r any tourist right who ever was admitted would have been denied the waiver so if you if you were a tourist when you were twenty and you were adjusted when you were forty and committed your crime when you were sixty you would still be under the original language so that the reason for doing it statutory deafen if you don't follow statutory did it am i wrong that that as a regionally passed before the amendment previously been admitted would have applied to more people than just l p with this but this specifically did is to limit those two to the people who had achieved the status of the alien lawfully admitted to permanent residence through admission and not adjustment and  we have clear of statutory definitions of under these circumstances now i just want to make sure that i've got that exactly right that can people be admitted to the us who are not  if you accept our position then the waiver couldn't be he couldn't show here i mean that that is belied by the regulations that we cited page ten of our reply brief and by you know uniform practice had gotten the denial of discretionary waiver i think because his offense was a sexual abuse offense it was something that the immigration judge might well have decided that they don't want to  do they just want to get out of the way right here we have a nonviolent white collar criminal it also means that the government raised it that is of said we're not because can the i j a independently just say i'm going to deny you discretionary relief or is it you know the attorney general the government in some way i don't know the and i don't know the underlying facts of that case well enough from from the record and it doesn't it doesn't make clear here the immigration judge quite clearly said quite clearly said that will resolve the legal issue that for example is what was happened in martinez who i was counsel and it went back and then the application was it was considered just one i know my time is up but if the court is considering