case presents both a unique intelligent fact pattern in writing and review revising the laws of immigration many times i cannot believe congress ever envisioned this type of fact pattern counsel i've got a big problem with the case let me tell you what it is ok you can address it directly ok it's a case where i think anybody would really like to give a break to these people however the son is thirty six years old the statute says child means an unmarried person under twenty one years of age he's not under twenty one years to be functionally in terms of how much they care for him they give him a whole lot more care than they would if he was six years of age because of his tragic physical situation but then i look at what the supreme court's that in i but the third circuit held that what mattered was whether hector's relationship with her nieces was the functional equivalent of the parent child relationship and then the supreme court said that congress set forth what the supreme court called on the usually detailed and on yielding provisions defining each players to the occluded relatives and they rejected the functional definition of child for the nice to it all and raises their child that makes me feel like we can't give your guy a break because she's over twenty one even though functionally he's like a child the sector decision rejected the third circuit flexible approach in the reasoning behind bucknall functional cross the reasoning behind the supreme court decision is if you look at the the argument of the justices was because it was basically  slippery slope argument if you let if you expand this definition of relationship to an ant are asking me a niece or nephew or a grandchild then why not to a neighbor's son or or a friend definition of relationship it would mean it would mean you could you could classify your niece as a child i mean you classify your grandchild as a child it happens all the time i mean still that age now the court could take that approach and i'm sure there will be search filed on that in this matter would not end here but it is a it is a functional approach it's not strict interpreters and it is not you know the recent he's a goner anyway and that they would be doing a favor to these parents by deporting them to mexico because then they could quote get on with their lives to understand that your characterization you have anything in writing that ascribes that callus a position to the judge temporally state proceedings to allow us to make a motion to administratively close that and then when that was the that was orally denied there was nothing in writing no no the immigration attorney told and told the i j a and myself at the same time and going to be real careful here yeah you know i mean if there is that your take on their response or if they actually said those exact words i cannot you know i'm not comfortable stating and he he's actually a friend of mine as well you know i've known him for many many years and it was after the demotions administratively closed was denied that i basically called him up to try to argue this with him because he has some good morning your honor smith please the court my name is jeffrey bernstein and i represent the attorney general of the united states this is the model for that adage hard cases make bad law you've got a real risk that the child in the traditional dictionary sense the question is whether or not an individual meets the statutory definition of a child and as the supreme court in hector's said the congress has draw in a slippery slope basis they were interpreting the statute and here the provisions of the statute that they were interpret ing were even less specific than the statutory provision that you have to interpret the provision that you have to interpret says a child is an individual under twenty one years of age is the same actually say at the time it's a fine child your honor is because this is a catch all provision that applies to defining child throughout the act and it is clear that an individual must set and i think the case law says this and i'm not familiar with your case the issue but i can imagine that it says anything different that the end of the qualifying individual that's interesting to me given that me well all i can say is i'm not aware of any  decision of this court holding otherwise they they could have gotten relief i guess if they'd applied during the months between the car accident and his eighteenth birthday they want him removal proceedings at that time so they couldn't have gotten the relief because there was nothing to get relief from they were in fact paroled in they came into the country because they were paroled in for humanitarian reasons when the son had the accident and they're being removed or they're being removed because they don't have status in the country your hon i'm not at the level of interest on the part of the department exercise discretion here well the only thing that i can tell your honor is that i spoke to the way who wrote the brief in this case and she indicated that she had discussions with the service when she was writing the brief and they indicated that they would certainly entertain a request for humanitarian relief once the administrative order of removal was final count thought i'm not sure i understand what those the facts were so bad that i was quite confident the alaska supreme court would change what the law was so that we would lose so i would tell my clients settle and they did and we're likely in fact going to happen here well luckily in this case right now we have the supreme court decision which which requires you to reach that they can face their minds as they can we can we can strike out in a new direction and they can change their mind is the service if we refer this to mediation or do something like that is this case going to settle to avoid the risk of bad law are we wasting our time and should we just decide your honor the only thing that i can tell you is the answer that i gave to judge hawkins is that the attorney who wrote the brief had contact with the service i heard that and i didn't know what the words meant ok she spoke to an attorney an attorney in the solicitor's office or whatever general counsel's office i presume it was san francisco and they said they were not interested in settling this case at this point interpret that and it's only my interpretation because i wasn't in the conversation but i interpret that as meaning if the court affirms the administrative order then they will entertain a request for humanitarian relief so if court and finds that there is wiggle room in this statute then the floodgates will in fact open because every every person will be arguing that their relative is a child  some you know reason so i mean you open the floodgates by rejecting the supreme court's this opinion that there is no exceptions that the statutory terms are clear unambiguous among cases that as the with the grandchild but it but it's what it really is the same argument and he's arguing that the same organ well i think if i could continue he's arguing that he's the functional equivalent of this individual is the functional equivalent of a child under twenty one of an individual under twenty one so it's the functional equivalent of the test no matter how you look at it and we don't have to adopt the functionally equivalent thanks eight us even when no one need finds a child not nice not a grandchild but a child as we say at the time of this injury now within the definition of the statute to be a child it can be a natural born or adopted child not a grandchild not any why we're going to open up the floodgates so there's i say it's the question is not whether or not he's a child in the dictionary sense it's a question of whether or not he's a child in the statutory sense and he's only child and is the question here is the child at the time of the coma and he had the accident but that is not the period of time that we look at the question is when an individual  applies for cancellation of removal they must have at that point a qualifying relative a child can only be a qualifying relative if that child under the definition in the statute is under twenty one what's the finally have to be a  they have to be trying a child at the time that the at the time that the individual applies for cancellation of removal because they have to have a qualifying relative before they can of tain a ruling on their eligibility for cancellation of removal and a qualified date of the application for cancellation of removal is the critical date for determining whether there's a qualifying relative i think it probably extends to it's kind of a moving target in the sense that if well actually i don't know the answer to that question certainly at the time they filed the application they must have a qualifying relative i was about i was thinking that perhaps that if the child ages out was in the administrative process that would be problematic but that's probably not the case so let's stick with that that they've got to be a child at the time the application is filed because again they have to have a  relative and they can only have a qualifying relative and for purposes of the child if the child is under the age of twenty one because if the individual is not under the age of twenty one then this gatekeeper provision for this statute can't be  satisfied just sort of curiosity how long does it take between application and decision your i don't know it varies i mean obviously it's an administrative process weeks months or years your honor i don't work for the service so it's really beyond my experience and expertise to give you an answer to that question and i apologized and i'm happy to give the san francisco office a call and ask them if you're on  in my remaining i'm going to first address the last question to you about government counsel when you asked how long an application takes normally an application takes about two to four years however as we all have cases that are taken nine years ten years i was in court the other day there was a case from sixteen years ago you could apply because your sixteen year old needs your carers a floor with our suitcases in hand turn our clients and at which point they will be arrested and then they will either be if they decide to exercise their state of removal then they will be released that's how that works it's not there's no process like don't let you know in advance and as a practitioner we've all learned that you know that's just never happens once they're in walk up they're gone so to me that's not really a remedy now  comes back and says my supervisor rejected it it's happened to me more than once your honor i'm sorry my time is up if they did give you a break if we have for a while and you know it could be no it could be with that same day we released you know that evening i'm just thinking you did court these people because they're illegal aliens and dad statute says what it says the kid is booked up to tubes he's not a kid thirty six he took up the tubes if their house where they're giving him home here basically keeping him alive if i got that right so far your honor i have no idea about the facts of this case i thought he was going home care now to be honest with you because this is a purely legal issue although i did read the documents  that home if nobody's there but he carefully so i presume he become a ward of the state and he would be taken into care but i think it's only speculation on my part dance that i needed to know i don't think the response is necessary but if it is going to tell us if you