right you may proceed we have two cases that are consolidated for argument because they obviously cross each other and so to the extent that we have different procedural postures and standards of review in each case it would be how helpful if you would tell us in making your argument if if you're relating to the hideous case or to what has now been moved to the ninth circuit as a petition from on the a decision very well yours i would actually like to use my time to make some clarifications more than anything and also point out that i've i think that under the real idea act pretty much everything is consolidated into one procedure and i think that that was the purpose that the congress hav case begins with the denial of a motion to continue which we believe was fully justified and i think that in order to understand why this is justified it is important  for the court to understand how the immigration procedure actually begins it's very similar to any other case criminal case for example where there is two stages there's the remote there's the  guilt stage and then there's the sentencing stage if you get to that if the person is found guilty similarly in immigration you have two stages first is the remove ability or the portability stage if the person is found removable or deportable then you move on to the relief stage well there were three master calendar or semi arraignment or status conference calendars if you will which are short calendars where the court room has twenty or twenty five cases at the same time everybody in the same courtroom and the person is allowed maybe five ten minutes to resolve the issues and then proceed to a hearing the trial in this situation at the first master calendar the government had not submitted any evidence was granted we denied the charges of the portability that the second master calendar in july of two thousand and two the government chose to submit evidence to prove what is their burden remove ability and at that point they submitted partial evidence he submitted the complaint and the change of police form but they never submitted the sentencing so the government argues in its brief that geez we weren't prepared it's a little hard to be prepared to address documents issued to you at the time of the hearing and expect you to make an intelligent plea at that time so yes we did ask for a case in the next and we did get a continuance so that we could read the papers analyze and see if we agreed that the person was portable and then come back we returned in august at the august hearing the judge did make a finding that in his opinion of my client was deportable i disagreed and i did not accept the charges however since the judge did make ruling i requested at that point leave for leave of the court to address the issue of relief now the government makes a big issue of the fact that at that point the judge asked whether he asked me what relief was available to my client i said that i believe he was eligible for cancellation of removal and at that time i also raised the fact that he might be eligible for adjustment of status through his u s citizen wife the government makes me to do about the fact that there was no the trial date approximately ten or twelve months later in fact judge barrett who heard these proceedings is currently studying cases in july and august of two thousand and seven so there's clearly enough time to process the documents and the judge gives you ample time within which to file them so again i'm trying to get some of the clouds out of the way because it's important to be able to understand it in order to be able to figure out what really happened at that hearing the judge  i'm clear on the law and i don't think you qualifies for anything that's it i'm going to order him deported on the spot which is what he did now in my opinion that is a violation of my client's due process rights why because number one he had a right to a continuance so that he could meaningfully address the issues before the court and be he had a right to determine now that we were at the relief stage what relief he was entitled to and to brief it to the court granted there are problems there's no question that there are problems why because my client was convicted of two crimes burglar of a vehicle and robbery and the government was alleging from not mistaken the both of them were aggravated felony as well the truth of the matter is that one of them at a very minimum is not deemed an accurate felony that's one of the unique case whitey which is out of the circuit after the second one i was not convinced that he was an aggravated felony in addition he has the right to try to obtain relief by means of his wife who was ready to file the petition when a person adjusts the status he is asking for admission it's a legal fiction he's asking to be admitted to the united states he's already in the united states so that's why it's a fiction but in fact this court held in  that a person who was convicted of a firearms fence which was not pardonable into the two twelve c that you could apply for adjustment of status and it was sort of a revolving door so that he would go out one side and never hit the outside to come right back in entitled to a waiver presuming that his crimes were crimes of moral turpitude and which required a waiver there are certain there's a waiver under section two twelve age which has problems because of the aggravated have no idea what you said ok i mean i we've read the statute we understand the fisa statute basically listen my question again because i want i really want to understand it because this is like one of those charts if he doesn't qualify here then in my qualify over here you know he has his wife over here but he has his felonies over here and you kind of keep drawing the lines from starting at the top with aggravated felonies my question is whether under the statute if you have that related felonies whether you can get age waiver if you have been convicted of an aggravated felony after admission i believe is the rule but if you haven't been admitted then it's then you cannot obtain it and that's one of his problems now the other waiver is the two forty eight cancellation waiver again aggravated felony barsa but the point that i have been trying to me is that this aggravated felony issue is a a waiver is permissible you just told me through circumstances where i understand if the aggravated felonies were to prevail as being appropriately analyzed a waiver would not be permissible that's correct i think that if if under the scenario that he was facing if and there's only one conviction which at this point poses a problem which is a robbery one because the burglary has been deemed not to be an aggravated felony if the it's a burglar of a vehicle that's why they say that in the first paragraph of their decision what what effect does that determination have on the analysis that's only the basis for remove the ability of the inability to obtain the waiver stems from the aggravated felony charge which they never charge but they argue that and they're entitled to say that if the person is convicted of an aggravated felony even if not charged in the in the deportation case it can be used as a shield to to prevent him from applying for brief about the whole determination of the seven years you know if we take the governments you know statement at face value what then is the remaining issue for us to this side whether the will give him a little extra time i just want to when i make sure we're sorting these all out because the bench your remain and you know in general we have quite a bit of case law in which we construe that but i don't think we have a case exactly been convicted of two crimes in warri involving moral turpitude is not an aggravated felony but that alone doesn't change the fact that the robbery offense did indeed qualify as an aggravated felony which barred the sailing from cancellation of removal now we have a huge issue with respect to whether or remit is appropriate because unlike the immigration judge who denied this on aggravated felony grounds and the board of immigration appeals decided to go with an incorrect ruling with respect to seven years of history he was lawful pres very unique situations where this court threw its authority to rule in its own jurisdiction actually does have to reach the i really felony issue not only is there crimes involving moral turpitude that bar this court's jurisdiction but as this court said in the very narrow but we would have to make a determination a legal determination about the tag related felony based on the charge sheet and it would be really a can do so then you have to court over the and i really do appreciate the court's caution but this is actually one of those rare situation with the attorney general is going to say that this court because like i said a few moments ago has the authority to turn its own jurisdiction and can go  same ruling that you'd be asking to be made a rule and then you have tension between ventura and ohio versus roberts which would not require theophylact and i think when you balance all that out the quicker easier neater thing to do is for the court s jump up and down too much if we were to remain on and say left to be i and make this decision and then if it comes back to us it would be on this legal issue yes i mean whether or not it was correct or not we're in the same struggle that you are with is that i can say that t case may be decided at the next hearing and he kept the promise mr hernandez as we know an alien space is removed as well as the factual allegations in the charge sheet can impact the ability for relief the immigration judge accepted pleas made a ruling respect to present that would have unseated the immigration judge's ruling with respect to an aggravated felony even here we haven't been able to really nail it down i assume it's the ones that are in his brief with respect to his time of sentence awarded for that took this out of the aggravated felony definition but those are supposed to fairly quickly and waiver which would be joined with an application for adjustment established this afternoon for adjustment status is going to be based on marriage to us this and therefore they only had to show that they that he was immediately eligible or that there was an immigrant visa immediately available to him we don't very briefly the again i can't overlook the fact that at one of these master county hearings there are still two stages the only thing that the judge decided and said he would decide was the remove the military face he said nothing about going forward with relief he did say and i may decide the case all in one hearing yes but when a court starts in a case and says what are your applications for relief and i'll give you x amount of time to file and it's not logical that he's not going to give you the time and you don't come to and arraignment calendar with your sentencing brief already because that has that stage has not been reached similarly on immigration court you don't come to a master calendar with your applications for relief already to submit with one exception which is an asylum case which requires that asylum applications