why don't you take us through you know this is sort of a calm what i call somewhat common that case i had a lot of trouble going from one number to another number because my name's eli ackles i represent or they are of all of the petitioner in this matter and your honor i'd be very happy to begin by walking through the statute says as you requested because and in this case i  believe that the government is in every sort of instance or they've addressed this matter before and i believe they've gone backwards i believe to proceed forward john and the first thing to do is to look at the released that mr two now not seeking cancellation based on the general removal but on the special rule that's correct and why is why it is that because it's going to be harder for him to he cancellation under the general rule i believe it's impossible for him to get an an is that because when congress wrote i believe congress first wrote the regular cancellation statute and they one of the bars is any conviction the word used is conviction for a crime involving and it says the attorney general may cancel removal of and adjust to the status of and alien lawfully admitted for permanent residence and alien who is in admissible or deportable from the united states if the alien and then it goes through the eligibility factors now the the things that know there are that it uses the phrase alien law of the admitted for permanent residence which is a defined term which means the status of having been lawfully accorded the privilege of residing permanently in that in the united states as an immigrant that's at eleven zero one a twenty so this  is a term of art here now so clearly then the but the problem for your client is a general matter because he is the term illegal and he's not a person who overstated the said he was illegal from the day he walked in has been illegal for twenty something years that's true so the problem is my understanding is when you're here illegally from the get go you don't get to go walk into the office and say could you have just my status they'll say  your status by the porting there's no adjustment of status when you're illegal is that right now i don't believe that is correct are actually he was on a path to adjust his status under section two hundred fifty five that back you could certainly marry an american citizen or do things like and he did marry a us citizen and unfortunately it turned out to be a very abusive relationship and he filed a self petition which is mentioned in title twelve fifty five as a vehicle for adjustment of status and so he was on a path to adjust  only apply for when you are in removal proceedings so in removal proceedings he's eligible to ask for cancellation of that removal and adjustment of status now when you go through the eligibility factors for this special rule cancellation it says that you're not eligible if you are inadmissible under certain sections of understand subsections of title eight section eleven eighty two so if you're reading the plain face of the statute you proceed to jump over then to that an eighty two to examine is he indeed in eligible under that section and when you read those sections that involve crimes involving moral to turpitude you immediately see that it refers to a waiver of those grounds of an invisibility later in section eleven eighty certain factors and that section of that waiver concludes with the language that it is available to people who are applying or reapplying for a visa for admission to the united states or adjustment of status now he would if he himself says he's not being declared an unmissable or being deported based on his crimes of moral turpitude all of their the obstacle but he could yes this special rule i gather part of that waiver is let's say the typical example is the wife's been beaten by her husband for a long period of time she's illegal she's overstayed her base air and maybe just straight out illegal and one day she takes a preemptive strike says to heck with you i'm going to hit you first and she gets a conviction for that and my understanding of the waiver rule as to that kind of conviction is limited to we're going to we're going to ignore her conviction because she herself had been battered that's a part of that waiver is it not well it's not a part of the waiver under section eleven a two subsection each because i'm addressing violence is not a ground of inadmissibility itself it's not independently that's actually a ground of movability and so that's referred to under section two thirty six sorry twelve twenty seven the that is an issue that the government has raised here as an argument that  because the special rule cancellation statute refers to that remove ability waiver it should have also referred to section sorry eleven a to age if it meant to make that available but i believe honor that eleven eighty two age is a very old waiver and i believe that the use of the word in didn't in admissibility is itself an express cross reference if you will to section eleven eighty two which itself is even more expressly cross reference between the grounds and its waiver the removal waiver is new or waiver based on domestic violence and what it's what the cancellations that she's actually doing is expanding the role that we have or can be used for its what it is saying is it even uses our language says the authority provided under section two three seven seven may apply under paragraphs one b and one c of reg cancellation and to a sub roman numeral for a special now it's notable that those first two paragraphs under regular cancellation aren't the first one is a good moral character so in other words the reason they specifically mention the two thirty seven waiver is to expand its use from beyond a simple waiver of ground over movability for domestic violence to address good moral character and i believe that a plane reading of the word inadmissibility is all you need to jump over to eleven eighty two and down to eleven am a levitation new topic an hour might give you a couple more minutes here but yes this was helpful for all of us to just have it take us to the statute but the real issue here is we're not looking at this necessarily than hope least of the a g c was asian it's the stang we're talking about chevron and we're talking about an agency that has looked at what it deems to be an ambiguous set of regulations and statutes and the agency has said this is ambiguous and we interpret it as they have done and your d d s first to tell us argue and persuade to us it's not ambiguous i don't know how you could say it's not i not a reasonable one and will give you a couple more minutes today that thank you and so the knowledge i would use your honor is that mr our wall has been on a treasure hunt here for a good long time and he and i studying this map go through what i just laid out we start with the relief that's going to be the vehicle for him to get his ability to reside here indefinitely great treasure on this planet we started the relief we see he might have been ineligibility we jump over to the waiver there is explicit we refer to in that grounded in the eligibility right that's going from beginning to end from my perspective and i don't know why this is the case but in matter of y n p in the government's briefing before your court and in the court before the ninth circuit the only other courts have looked at this the government starts from the end of the story they started the way at the waiver itself and they say that the waivers use of the word adjustment of status is itself ambiguous i don't believe that that is a reasonable reading of the statute the words should be given their normal meaning and the normal meaning means what is appears in many places throughout statute not just twelve fifty five not just twelve twenty nine b but there's also the cuban adjustment act there's the haitian immigration and immigration fairness act there's multiple places where you would adjust your status you can adjust status after asylum so it shouldn't be required to say adjustment of status and all of its flavors the very term adjustment of status globally refers to all the flavors of adjustment of status and it's a complex complicated treasure map if you will but it is not actually ambiguous i believe there's a difference between end start with the relief work your way through the statute to the waiver rather than the other way around which for some reason it appears all of the other of those other parties are first should have done i thank you for your time and you well we won't count any of this time against time valerie thank you for adjustment of status for purposes of the waiver statute this court should defer under chevron to the board's decision in matter of y n p because the waiver statute is ambiguous as to what adjustment of status it refers to and the board's interpretation that adjustment of status as used in the waiver statute does not include special cancellation is reasonable regarding step one of chevron section eleven eighty two is a big us as to whether special rule cancellation applicants are eligible for the waiver for three reasons first the waiver statute does not cross reference other sections of the immigration and nationality act which flavors to actually be talking about now i'm referring to section eleven eighty two h two you can call it gen y for special real life or which one are you talking about well this isn't right now i'm not referring to the can of the statute that says to be eligible for the waiver the applicant has to be applying for a visa admission or adjustment of status and i gather he certainly the petitioner here was not applying for admission to the united states and the argument is he was he couldn't have come to your office and said i'm applying for admission you'd say well you know you're here illegally you not going to get anywhere that that's president line for adjustment of status and my question was you know typically pure straight out illegal alien you're here adjustment of status is not typically something you can do i guess you can try to make an application you marry a citizen that would that would be one way you tried to remove the illegality that's  adjustment of status under section twelve fifty five that's what most people are talking about when they talk about a adjustment of status and to be eligible for adjustment of status under section twelve fifty five you have to have been previously admitted to the united states so a person in petitioners position who entered without inspection and has never been admitted to the united states just is not eligible for adjustment of status under twelve fifty five adjustment of status under twelve fifty five so going back to step one of chevron and the ambiguity in section eleven eighty two so the first reason it's ambiguous is because  eleven eighty two the waiver statute doesn't cross reference another section of the immigration nationality nationality act on to explain exactly what adjustment of status it's referring to the second reason that the statute is ambiguous is because and i'm going to jump to a different statute and i'm going to jump to the cancellation statute subsection b five of the cancellation statute in sub section b five of the cancellation statute congress specifically clarified that a certain waiver of de portillo waiver of deportation is available to special cancellation applicants and there would have been no reason for congress to make that clarification that this one particular waiver is available if other waivers of inadmissibility and the portability statute with no subsections is twelve twenty nine little b and then i'm talking about subsection b five so it's it would be twelve twenty nine b parent words that will help us follow along here now time at the domestic violence library i'm talking about the domestic violence waiver and the fact that in the cancellation statute congress specifically clarified that the domestic violence waiver is available to cancellation applicants and there would have been no reason for congress to make that clarification if the general waiver of the eleven eighty two waiver of inadmissibility was implicitly available simply by the use of the word inadmissible in the cancellation statute so again that's in the second reason why the language is ambiguous and the third reason that the language is ambiguous and again i'm going to talk about  subsection b five of the cancelation statute in that section congress specifically identified something called a cancellation of removal and adjustment of status proceeding but even though that section demonstrates that congress knows how to identify such a proceeding when it wants to that proceeding is not on the list in the waiver statute in the eleven that congress knows how to identify that proceeding when it wants to and it simply didn't include that in its expressed list in the waiver statute eleven eighty two h two so for those three  generally is applying if what i said before the domestic waivers generally apply to someone who is trying to cleanse themselves of a domestic violence type of conviction is that correct and  they can cleanse themselves of that specific type of conviction and statute if they themselves have been victims of domestic their about the balance producer and about receiver but somehow that's a wash that's not our situation here that is how that we ever operates  section eleven eighty two eighty two so that is how that waiver operates you're correct and he might not even have been able to take advantage of well i'm not sure he has a child abuse conviction himself although that's not the ground for removing him but i don't know and now that there's something something i've read where domestic violence waiver does not apply flies to some things but i thought it didn't apply to child abuse but maybe it's child sexual abuse first is another child i'm sure you're not sure how it works here reference to another section of the i and i had to explain what adjustment of status is referring to subsection b five of the cancellation statute there would have been no reason for congress to make that clarification if it were why an application for special cancellation is not an application for adjustment of status the first one that the board gabler's that the two forms relief are fundamentally different with different procedures different statutory eligibility requirements i've detailed though the different eligibility requirements in my brief and the board explain that for adjustment of status under section twelve fifty five  that something an applicant applies for he has to have been previously inspected that emitted and he has to make a showing of admissibility for a special rule cancellation applicants on the other hand the alien simply becomes an l p r as a matter of course automatically when the removal is cancelled in other words they don't have a basis to be they don't have a basis to adjust their status it just happens automatically as a matter of course when their removal is cancelled a special cancellation applicant doesn't have to meet the same eligibility requirements he does and that that in terms of talking about adjustment of status it was almost a labeling thing it was saying this will be the automatic consequence of what's happening but we're not indicating board that was the board's first reason these these are just two fundamentally different things with different application procedures and different eligibility requirements the second reason that the board gave all the sound familiar because it was one of the reasons i did for why the statutes ambiguous but the board said the second reason the board gave was that again this subsection b five of the cancellation statute specifically identifies a cancellation of removal an adjustment of status proceeding yet that is not listed in the waiver statute as one of the three scenarios one a person can apply for the waiver and the third reason that the board gave was that its interpretation was consistent with the  regulations and that's eight c f r twelve forty five point one subsection f which provides that for an alien in the united states an application for adjustment of status under section twelve dedicated there would be a real it logical consequence based on the interpretation here that legal aliens would be unable to adjust status or do whatever they're trying to accomplish but illegals would could you take me through how that works you know the example i'm talking about how in a practical sense what what the b i was was talking about yes your honor that there was the board in matter of one m p it's in there discussion about  why an applicant for special cancellation isn't applying for an admission as far as that portion of the bores the shit decision goes this court has already decided in this those cases are cited on page nine of the government's brief that admission as used in section eleven eighty two age two means someone outside the united states who's seeking admission to the into the united states at a port of entry so i don't think under this court's case law that there's any case to be made that this petitioners applying for an admission but nevertheless that the language that your honor was asking about is in the portion of y n p where the board was explaining why a special cancellation applicant is not applying for it do you agree with that analogy or that example that the b i is offering are you telling me that that example wouldn't work in our court based on a precedent is that example accurate will that examples accurate but the court i would say the court doesn't need to get to that part of the board's decision about whether this petition is applying for admission because the court is this court already privy to that admission is used in the waiver statute means that anyone who's outside the united states and others you can't be here for twenty years illegally lock in one day in san applying for  unless the court has any additional questions we asked the court to deny the petition and thank you the petitioner here who is has been in the united states without status for this long period is actually a number of ways that they could apply for admission as as you your are just cons have said a marriage clear though that really being without papers like my person's position is really not as big of a disability if you line up for the vehicles that exist the vehicle that he is best suited to pursue is this special rule cancellation application and if you started the beginning of that he had not had the misfortune or maybe here the good fortune of being able to allege that his wife had abused him physically he wouldn't have much of a route at all because his crimes yes and because of the regular cancellation which he would otherwise be a perfect candidate for bars him due to its reference to convictions and that's a point i think that the court should take careful note of when they crafted the relief called special rule cancel a special cancellation they changed from saying that you were barred if you were convicted saying you are barred if you are inadmissible that's a term of art and congress as this court has held that believe that congress  to know the legal meaning of the words it uses when it makes a statute so it it intentionally used the word inadmissible rather than convicted which it had already used in the prior version when it used that word inadmissible and ecclesia certain subsections of title eight section eleven eighty two including those grounds of for being convicted of a crime valving moral turpitude it wrapped in not only those grounds but also the and the waiver at title eight section eleven a two h does not remove the fact that a conviction that's also well established all it does is waive the ground in admissibility which again loops us back around to where and if he's granted the waiver in concurrence with the application for cancellation then he receives his green card and i don't i don't think it's a fair thing to to call any adjustment of status automatic face he's applying a ten page form with the with the filing fee is extensive biographical information there's grounds of ineligibility there's requirements for eligibility so it's not that it's an automatic adjustment or a thing that happens he has been found to have been a victim in a bonafide marriage of domestic violence that the government has already found that when they revoke that petition later it was based on the conviction just based on the lack of good moral character but it did naaman validate the fact that he has been found to be a victim of domestic violence which which gives us hope that if we were to get to pursue the application for a translation that the judge might also find that he has been a victim of and heard that child abuse he was convicted plays no role in th because they're not basing any of their decisions on the fact he's convicted of child abuse well so well he they have found affirmatively and we're not contesting that that crime is a crime involving moral which makes him inadmissible and that's what's barring him from proceeding just immediately with the special cancellation application it's what's making the way the rules would work would be if he has one occasion or more been attacked by his why but he same time has abused his children he gets to stay because of the fortuity that his wife abused him even though he's abused children that's how the law works i would not say that that's the way the law couple in of a waiver it included broadened a preexisting waiver that is incorporated by reference it lowered the standard of hardship required to be proven it shortened the period of physical presence required so in other words cancellation ruvell is a difficult thing to win special rule is easier to win but only because out of recognition the fact that this person has been a victim of domestic violence is not a positive thing it's something that makes them especially population so you are we would beg the court to start at the beginning of the statute and read through and when you get to the very last words which is those last words of the waiver adjustment of status to understand that that's a term of art that's a global reference to all the forms of adjustment