today she is still a member of this panel and will participate and deciding these cases as you all know i'm sure having been here before the all of these arguments are recorded so she will have the opportunity to listen to those and she regrets that she can't be with us this morning so that's my presence here notwithstanding the fact that she was announced as the presiding now we will begin lynn is a national citizen of the people's republic of china she is married to an american citizen she is the mother of two american citizen children and she has been fighting for the last eighteen years now for the right to stay here in the united states ms lin first came to america when she was two weeks past her eighteenth birthday and it is unfortunately that entry to the united states that's caused all sorts of w subsequent to that entry she has married and her husband her american citizen husband has filed a visa petition for her and she has sought adjustment of status to lawful permanent resident of the united states so just  fill out the facts she came in or no on a passport berrigan some other name and it was an american passport she was neither that person nor was she an american citizen absolutely correct and so and nobody ever disputed the fact that she came in under fraudulent pretenses absolutely correct and then when she applied for the for naturalization she didn't mention the prior fraud is that correct that i  we've always taken the position that while she was in possession of fraudulent documentation she is not legally responsible for that fraud for many reasons they have outlined below extensively the initial fraud correct correct  including many reasons one under the i'm ok decision that this this court has rendered she timely retracted she recanted her fraud at first opportunity to statements made  airport that were recorded at the airport immediately after her arrival shows that she was for lack of a better word clueless they asked her name her nationality her intent she had no answers for any of that understanding is that the agency problem was not so much the first fraud but the failure to mention the fraud in the second in the application for just bit of status to the best of my mind there has been and again handled this case for many many years it has been that first fraud that first american passport fraud that has haunted mrs lynde throughout the years her denial of that fraud has been in contention there's no question about all th so so anyway the question of the two questions i gather one is whether the she was ineligible because of a fraudulent entry or and the second is whether the application was denied aid as a matter of discretion after weighing the positives and the negatives and whether that is something that we can we can review absolutely and i will say that there are two parts to the u s c i s denial and one clearly is discretionary but you let the u s c s denial has consistently made determinations of law and we believe those determinations to be matter i thought they were wearing positives and negatives in terms of the facts here i believe they do matter if miss lynn is not legally responsible for that first fraud back when she was just two weeks past her eighteenth birthday no negatives can flow from it it's sort of the fruit of the poisonous tree if we can if the tree and the but there are no negative at ways if there was no fraud because she was not legally responsible for that fraud when she first came in then all the negatives that flow from it disappear and there are no negatives that's that's essentially are our contention can you discuss our jurisdiction to hear this case in the first instance it strikes me that you've got a problem  yes judge others no question it's eight u s c twelve fifty two a five the preclusion part and you're absolutely right i do have a problem we're arguing about our way around the has to do with the unique status of miss lane as an arriving alley into the united states immigration laws are unnecessarily complex and one of the complexities in there is the arriving allien subsection of aliens in the united states in most cases and only into the united states who seek adjustment of status must go through the board of immigration appeals the immigration courts and that that that set up arriving allianz are exempt from all the board of immigration appeals the immigration judges have no jurisdiction over arriving aliens applications for adjustment of status even more they actually have quote no authority even more than no jurisdiction over these applications and this is board precedent decision matter of gallery back in two thousand and nine and it is that upon that which we rest our argument that the twelve fifty to a five preclusion does not apply and she continues to be you know riving status correct correct grammar just wants me through how that works when mislead arrived at the airport she made an application for admission to the united states as all people do and i think the immigration officers at the airport immediately realized i you're not an american citizen and they brought her into english they brought her into the secondary inspections got an interpreter and that's when all the truth came out what they did then was they said ok you're not admissible you can't come into america instead we're going to prove wrong and let you in as and arriving ellie and she's maintained that status ever since and we have any case that supports the argument you would like us to accept there is and judge i'm going to see my time is nearing an end but there is and actually before your honor's before this court there is a case saying the u s c i s where an applicant may have virtually the exact same argument that i'm making a mat is sixteen dash seventeen twenty nine here on appeal has not there's not yet been a decision reached and the district court below reached a similar decision that judge chen reached in my case saying that  jays exercise of discretion because of a misunderstanding and the state of law could you address that point yes your honor i mean there there is unfortunately that argument is contrary to this court's decision in the ling yang case which we cited in our brief underling yang where there is a determination of statutory and eligibility and also a determination a discretionary determination and the discretionary determination is based upon at least one factor other than the statutory eligibility determination the entire decision it is unreviewable and as i said that's a that's a reported decision by this court from two thousand and eight i believe so that's that is addressed in our brief to the extent we believe that the underlying yang of that argument  now with respect to the arriving alien argument as opposing counsel forthrightly conceded the one case which has been reached that issue actually ruled in favor of the government the same ca that's on appeal to this court and as of this morning at least there was no decision from this court and let case it's been argued i think and yes it was argued i believe that in the december your honor i again i just for the record to my office didn't handle that case but i've been checking the docket sheet so the decision is if the case is still so beautifully before this court i mean as to you know in a rising alien as to what in arriving alien him is i mean it's it really doesn't make a difference for our purposes again first of all of course the arriving alien has no argument has nothing to do with the discretion which you consider reach the arriving alien argument it really does make a difference the argument conflates two separate issues one is the issue of u s c i s as  review over over the case those are two entirely different questions as the district court for the district of columbia held in the chen case that cited in our brief so you the fact  continue to appear in immigration court she could have or perhaps argued that again before the immigration judge certainly taken an appeal to the b i a and if necessary sort of petition from the view from i believe this court a letter with the appropriate court of appeals would b so but as i'm as i mentioned before in light of the of the discretionary issue here so to speak and the court really not doesn't even have to reach that issue or for that matter more generally the so called arriving alienation of the negative negative discretionary elements flow from an incorrect legal decision so while of course u s c i s coached their determinations in discretionary language it's not really discretionary language if it flows an incorrect legal determination if there was no fraud all the negative effects of fraud disappear so i would argue that that therefore the entire decision is reviewing or doing here is trying to be making  legal argument that there's no fraud as a way of washing away the fact that she appeared at the border with a fake passport passport fake or not a passport the didn't apply to her you know you that leave the legal conclusion of whether there was fraud or not or where the shoe remedy the situation afterwards or not why couldn't i j take into account that she did that yes indeed and then in her favor is that she wanted to remedy it afterwards but to take it into account even though maybe legally the fraud was wiped out she never got that opportunity gedge she was charged upon entry with fraud but there are two types of fraud under the immigration nationality alan talking about what the i g did as a matter of discretion i understand as in any adjustment there are consider the facts consider the consider it could consider these facts independently of whether or not they legally when taken together amounted to a fraud you have secrets or they didn't do that they simply said she came with a fake passport negative discretion done well it didn't but but remedying that entry remedying that fraud cleans the elements all the decision of u s a s denying the adjustment was purely a legal determination because the discretionary elements flowed from an incorrect legal determination there are no negative equities therefore there should not have been any negative discretionary findings that's issue number one issue number two the there is no preclude syria fact because the writing alley and status of miss lynn exams that that's the decision and there is no fraud at the front and that would be my argument there's no fraud on the front and that is fairly well documented again she came in she was two weeks past eighteenth birthday got off the plane not speaking a word english somebody shoved an american passport in her hand she walks up to a counter clueless and they bring her into the back of her interpreter they say what's your name stelzer name what country you are where you are what's going on with the  question and answers provided documented taken at that time show young woman who is without knowledge of what she's doing there is no fraud she had no knowledge of the fraud she timely retractor her fraud she was in charge properly she was in charge with american citizenship fraud going back to the i j a the initializer the initial charges never american citizen fraud was just generic fraud which doesn't even make sense because that's the only possible fraud was american citizen fraud there are errors here