good morning the court i met adams with northwestern rights project on behalf of mr vargas the board erred in rejecting mr vargas challenge as to the retroactive application of the agency's restrictive interpretation absolutely clear that he was eligible to seek adjustment of status is that the time that he filed we had had we've had our decision in president solace of a supreme court actually issued brand x for whatever value that might have been but we hadn't had any of that any of the country decisions from the b i a so we didn't have we didn't have twice we'd have our decision acosta we didn't have in re briones exactly what he does all sort of perfectly and that in that interim period where he had he had nothing to look at except exactly he presents the strongest factors the agency had not even announced in any of the parallel grounds of inadmissibility that they were not going to abide by this court's interpretation of the statu agency had not staked out a contrary interpretation of the statute and that is why the straightforward application of the factors of montgomery ward weigh heavily in favor of finding that he should remain eligible for  after the agency's contrary decision in both countries decisions in both matter tourist garcia and briones and in this case there was no indication from the agency when applied in we have some redress have any cases under to quell with that with the little subsection to ike versus the little subsection one i that is whether the removal of the problem before was where they had been removed before or whether  in september of september thirtieth one thousand nine hundred ninety six introducing a new scheme whereby persons were now going to be required to leave the country and instead of seeking adjustment of status and also introducing penalties for th understand that they weren't actually together understand that but was there any legislative history which i haven't individually tried to look up that would distinguish those two for retroactivity purposes the congress might have had in mind absolutely none that i'm aware of and we did extensive research as far as and of course we can step back and look at there's a general presumption a prospective any for legislative legislative anatman and congress didn't specify anything as far as a retroactive application of either of these grounds don't think there's tension i think there's a couple of different points of issue and as this court made clear in our fees rodriguez given that there are pined the montgomery ward scheme the administrative agency changing the rules that there's not a uniform rule that's applied with respect to determining whether a new rule is going to be applied retroactively if we have to go if we have to go case by case does it make any difference in your case that in a cost all the vaadia that there was some evidence that the petitioner there had said i decided to forego going back to i think was mexico instead of is that a file instead of making the filing for you you've made the filing fee is there any evidence that your client paid the filing fee but would have gone back to mexico and instead well i think that was the statutory scheme you had and i won thirty partition filed on about half that since but since montgomery ward seems to seems to say that we're going take this on a case by case basis right so i want evidence that your client actually would have gone back to mexico no we don't have any statement that he was at that point intending to return to mexico but i would i would argue that our client filed their applications when they were already in removal proceedings that is to say they had already been apprehended and had nothing to lose but to seek this remedy where is the petitioner here mr vargas affirmatively went forward and submitted applications to us c i s in september of two thousand and five and indeed it wasn't until the next year or a year later after the agency then staked out a different position that is appliqu it was denied in addition the record here demonstrates not only the thousand dollar penalty fee but over six hundred dollars in other filing fees that he submitted all on september thirteenth of two thousand and five let's go back to these two cases and this all wasn't that that's correct and in police yes their lives reliance was after the b a had disapproved so that neither of those i mean whatever the dicta in them might be neither of them present a stronger case but there are individuals who filed even after tours garcia who are going to be able in their individual cases demonstrate for example that they relied on the district court's injunction because they were a class member at that time like mr vargas was a dragon's aulus and you're going to have other people are going to be able to demonstrate that they have excessive hardship that's going to come on much stronger than even individuals generally present on being deported and so they're going to have arguments that there are cases when individually wade should be distinguished from korea they possible but mr vargas doesn't need to worry about that because he presents much stronger factors that were simply no indication from the agency that they were not going to abide by presidential value of a decision all the time we had vies our clients based on the law and the fact that another circuit has issued an alternative or a contrary interpretation does not undermine the binding need sure of this court's precedent and  case could be sort of resolved short of a decision from the panel that would allow him to benefit from while he was originally a class member durango is always in the settlement agreement narrowed the class of it do not include individuals who are already before the immigration court or already before the court of appeals because the parties agreed in that forum the individuals would have an opportunity to present the facts their case and have the court resolve the applied in montgomery ward factors so once once removal proceedings had been initiated against a person that felt within potential class member there they're out there out no matter what and that that's correct because they now have the opportunity before this court or before the immigration court to assert that under montgomery mail that's how i understood mr judge by his to explain is yes they'll have the opportunity to apply pursuant to the law that was in effect at their time so for example mr vargas seeks to have that same opportunity this doesn't mean he's entitled to lawful permanent residence the government is still going to have to decide whether he merits that as as a matter of discretion and they'll be able to determine whether he'll be granted the waiver for having a lawful reenter the government will waive that as a negative equity but then at least he'll have the opportunity to demonstrate that he's been living here for sixteen years without any criminal incidents he's been working for the same employer for sixteen years he has a u s citizen wife that we all those equities he'll be able to present but you're absolutely right he's not  entitled to lawful permanent residence we simply assert he's entitled to have his opportunity to seek lawful permanent residence pursuant to the laws that were in effect at the time he submitted his application it strikes me as  say that somebody who is a member of the class mr griffin yes mister vargas would have been a member of the class but for the removal proceedings that it's that he could get an audience under the under the jurisdiction stripping provisions of trophy to be nine there was concern that the district court would have authority to determine cases are already in removal proceedings and i believe that this court subsequent decision releases helped to alleviate any concerns that there might be where they've set precedent that if there are still issues that the record is that require development of the record that the court has the authority to reman d the case back to the administrative agency for further development of the record mr vargas however is in a much stronger position the record is very clear not only that he applied within the appropriate time frame that most strongly presents its case it even that is absolutely correct and i think this court's decision in costo of aria made clear that the legal expenses incurred in paying simply the thousand dollar filing fee in order to qualify under two forty five i are sufficient f a procedural question so our courts office bundled this case with a case called all doco and the government polled all doco that apparently in an exercise of discretion so what is the status of this case with respect to the government's exercise of that same discretion we have discussed with mr adams the issue of prosecutorial discretion on that issue was resolved and therefore we proceeded today  this court has applied the montgomery ward test in the first instance and i believe garfield at five fourteen discusses that retroactivity is not an issue that must be exhausted it's not required except to allow the each and see to correct its own errors so yes while because we'll have the new law i mean how many how important is a president in this case in the ninth circuit i don't know how many are in the pipeline i don't know how many are presenting an argument that they are relying on prin there may be more that is true there may be more and mr vargas evader does have this favorable wind of time and in discussing the cases postcard feels that your honour's discussed a few minutes ago i would point out that there are differences between this case and th cases i think this boils down to a comparison of the reliance interests in this case in korea the pla ceo's there was the reliance on pres gonzales that was the sole reliance interest given and garfield talks about these relies interests now that sole reliance interest on one case was not sufficient and the court decided to apply the retroactivity of tourist garcia to korea to pull off the us now this case is also similar and different from mr vargas of asia but it is similar in the sense that you know president enough that to go and are smart enough to go and look at brand x you could've put those two things together and figured out where we were going direct mr vargas could not do that well mr mayor i got the benefit of brand that x but he's got no idea what the board's going to existence at the time that he pays his filing fee is running in his favor it would have been a fool not to have filed your honor i the government submit that the test is a reasonable reliance annie and brand x did come out about three months  prior to mr vargas evader filing his adjustment application and the president was also very strenuous that not only are there other cases in other circuits that disagree with pres but present self said that there would be more there would be a need for more agency elaboration on this issue and that's why the president was ruling because of this ambiguity garfield's also explained that the same dignity existed it was very clear that there was tension between the adjustment provisions and the in an  much weaker case for reliance than this case but the difference is your honor is that this is giving up a voluntary departure forgoing that realigns interest is something that's not available in the case of a just case and why is that it's unclear i mr vargas made a request a voluntary departure or not but the issue in a cost to all of area was that he requested volunteer well he had voluntary departure and he gave it up to pursue his adjustment application i think the difference between this case and the other  are you sure about the moment he gave up voluntary departure i believe that his argument was that it was that he didn't he didn't leave the country that was i think that was the argument i don't think that he actually applied for anything or had the right to do anything he presented as a reliance interest the voluntary departure that he gives you're caught you you're using that loosely that is he could have he could have left rather than apply he could have taken the voluntary departure that was granted for ten years and then reapplied for consent to for consent to reapply for admission i guess i haven't a dissident read it that carefully then because i don't recall that there had actually been a grant a voluntary departure that he gave up i believe if i could turn to the correct  i just thought it was that he opted not to go back instead apply for short of but i may be wrong well many of them we've got another we've got another reliance we  but the pin site that i was finding in across the isle of area it's under the discussion of the second and third factors in which it states second a cost to all of area give up the opportunity to voluntary depart the united states and start a ten had to choose one path or the other the issue is these are the lines interest that are presented and he did have to choose one path of the other now the reliance interests here the point that the government is making is that what are the sufficient realize interest to preclude retroactivity in this case m data there are not sufficient reliance interest in the other cases that this court has decided there was a reliance interest in the filing fee and that case plus something else in a custom all of area it was plus the voluntary departure in korea run that if but if he hadn't actually if you had actually be granted the voluntary departure then the possible the voluntary departure was simply a legal possibility i was simply a permissible route and i don't know i don't see why that would be different from this case it would be a permissible route he could seek voluntary departure to avoid the ten year bar instead of staying here and filing the thousand dollars but he thought with perez on the books that he had a very good shot at it and the point of garfield is what is the reasonable reliance what are you relying on that is reasonable as a coun retroactivity and that's the factual distinction between this case and the other cases in creative lim well your honor and sometimes these cases are close i agree with that and sometimes the arguments are nuance and the factual distinctions are nuance  however that that's how the chips fall in this case a little bit more important and career always does make the point that there are these extra attorney's fees which are not present here are not in the record here and that's the reason that remained so in essence the yes there are differences in these cases there are factual differences something i just want to confirm again and there's there's short of a decision from our pick from our court on this case there isn't any other alternative way of getting mr vargas back before the i j a for ruling on his application for adjustment or your honor the yes if he was a class member then he would have mattered on which he's don't see those are those are the options at play just turning back to the second and third factors the the court did reference brand x which which the respondent has already argued was provided some writing on the wall for pres additionally the tenth circuit the fifth circuit and the first circuit all disagreed with her as after the issu before he is in a favorable period of time in this case is unique because he applied between present tours garcia which we don't necessarily have exactly that circumstance in the other cases that this court has decided but we do we  have it we have it back to back in a cost of living area except that the cost it did have a different reliance was that's not that we were talking about reliance now and we've already i think decided that the issue time thank you who has a few minutes for rebuttal thank you first i would say that contrary to the government's position case law does not support this novel theory that they needed to show filing fee plus something else and in fact if you look at the most recent decision in corio ruiz they rejected the alternative form of reliance so the petitioner asserted two forms of reliance one incurred legal expenses and he was focused on the attorney's fees because his filing fees were paid before the case law and the second was that he had not voluntarily departed and pursue consular processing but instead of going form of his application and this court found we do not think that qualifies so they rejected that other interest and in fact this court question as well in our face rodriguez so all they relied on was the filing fee and that's true in a coastal of ariya when you looked at the discussion of where the reliance where the petitioner demonstrate relian it then focused soley on the timing of the application and the filing fee and as i noted previously mr coast all of aria was in room over the proceedings when he submitted his application so it wasn't as if he was choosing whether to leave it's a theoretical discussion of whether he could see can perhaps be granted the discretionary voluntary departure from the judge instead of pursuing his application for adjustment of status as this court has noted it's already determined in the in published decision that another individual again falling within this window whereas the individual applied after this court's authoritative holding and before the agency's contrary interpretation should be entitled to have their application adjudicated pursuant to the law is that what standard before and the other point i would make is just with respect to new news raises the example we provided where there were eight other circuits that had a pint in a contrary manner that is the it was a split with eight other circuits and with each city and yet ten years later when this court reversed its own prior interpretation if found it would be manifestly unfair to retroactively apply this rule to people who relied on  there's simply no basis to assert that because there is contrary decisions from another circuit or a dissenting opinion as both of those were evident new news re is that individuals can't rely on the authority of this court and again this court think that a clear cut application of factors demonstrate that pursuant to coast all of ariya pursuant to the language in garfield us rodrigo's that he's entitled to move forward on his application that doesn't mean he's entitled to offer permanent residence but he's at leas entitled to have his application adjudicated pursuant to the rules that were in play when he submitted his application and receive his one shot to remain here with his family thank you thank you very much