continuance was to allow the petitioner an opportunity to proceed a collateral fight if you will with on us on c i s because of a tool for c r marriage fraud the case law is clear that collateral matters the immigration judge does not have to continue the case however the case here is a little bit different and in my opening brief i argued why good cause  week or quest for a continuance and that is because this petitioner here in the past was represented by counsel at the u c i s level and his attorney never appealed that to all foresee finding that attorney has been disbarred because of marriage fraud he never paid seven thousand dollars for any kind of marriage told that well you have to make a bar complaint and he has to respond and i was assuming because he's already for first filed one back on october first correct correct and in effect it was granted by reason of the government shutdown right you are all of two thousand and thirteen right so why didn't that give you enough time to get ready in terms of well i mean the reason that i filed that continue is because i was i was under the in pressure and that that that we were going to have a contestant carrying on the fraud charge and i wanted to asked the court if i could subpoena witnesses and i never received an close the case for a period of time whereby i can go back to us c i s let me ask you about that ok because you you told us in your brief that the chances of us c i s agreeing to entertain the kind of appeal that you want to say that you say you want to pursue is nil that's my given that circumstance how could it be an abuse of discretion to deny you the opportunity to pursue a hopeless collateral challenge while i mean i said this will correct but at least you're probably right but i well i mean i mean here's the thing i want i would have tried to build it up and submit all the affidavits under the sun i mean even today we have it approved by one thirty a of fortunately the client got his i won thirty approved and he didn't tell me and that's why i couldn't invites the court or the board about that but i just  point that out but the reason why that i wanted to ask for the contain the way it is the reason for the continuance i understand the courts are going to say it's speculation right it's speculation right but if you consider that the fact that he had deficient counsel after us c i s level i at least wanted to have an opportunity to fight that with i'm u s c i yes there was no inconvenience to to the court to close the case i mean the courts close cases all the time and i just want that opportunity so so why didn't you pursue that during the time where you had the defacto continuance was a result of the government shutdown in terms of wide with  the i g both likely what have entered that departure order because there are two different agencies that it's a collateral attack but i understand i really find so troubling about this case miss workman is that despite the fact that the government agency dropped the marriage law in charge it continued to remove ability charge of course it's the government's burden to to prove that charge and it declined to go forward with that charge because petitioner had already conceded the other two charges so but that doesn't mean with respect to relief it's of course the the alien or the non citizens burden to prove eligibility and that he or she merits a favorable exercise of disc for adjustment of status and in this case the budget situation or would it still need to show he is admissible that's one of the requirements for adjustment of status and that requirements is that he must show he's clearly and beyond a doubt intitled to be admitted and not in admissible under  c section eleven eighty two which includes section eleven eighty two a sixty one which is the fraud misrepresentation ground inadmissibility so and then if no matter how you spin it ok the fact is that when you event because of a marriage fraud and it seems to me that the government should not have it both ways once the government decides to drop the sham marriage charge it should never be allowed to rely on it again even in a tangential tangential no way a court should not have heard the words sham marriage again and this is such a difficult  situation because boy he may have had the most terrible water seen in a very long time originally on top of everything else well your honor there's also a difference between the marriage fraud charge and the finding under eight u s c section eleven fifty four c that is a bar to any future visa petitions being approved when there's been a finding of marriage fraud that that's something that  s found in this case originally so that was still in play even though the even though d h just decided not to proceed with the marriage fraud charge of remove  the immigration judge and then the board the used the petitioners unlikely or perhaps speculative possibility that he would be able to overcome of status including the fact that he he didn't even have at the time he requested his continuance he did not have a qualifying relative who could have why for a these a petition on his behalf he alleged that he had a daughter who was in naturalization proceedings at the time but he provided no evidence as to where she was in that process and so of course he did not have an approved let alone a pending i one thirty visa petition at that time and this court repeatedly has found no abuse of discretion where the agency has denied a continuance because there is no prime aphasia approvable visa petition filed on  non citizens behalf and with respect to the former attorney who handled the adjustment of status application and petitioners ex wife's the first  thirty visa position that was filed with us the i r s and there is no reason why the petitioner could not have filed a motion to reopen against that that former attorney just because he was disbarred there's well that would have been risky since that attorney as i understand it pleaded guilty to conspiracy to commit marriage fraud yes your honor so there is i assume the facts underlying that conviction involved a different alien as far as i can understand from the indictment that is in our record and the there is no mention of this petition or as part of the conspiracy charges that that attorney was convicted under and but it of course does look suspicious and in fact this petitioner actually worked for that attorney during that time that he was filing or actually excuse me before he ok he worked for that attorney from january two thousand and four to may of two thousand and seven he married his ex wife in march of two thousand and seven and she filed that i went thirty in may of two thousand and seven so the timing is suspicious yes your honor miss workman let me try to ask you this  to u s c i s in late october of twenty thirty what procedures were available to him to try to challenge the two thousand finding of fraud well your honor he could have filed a an untimely motion to had by my count about six opportunities to contest the fraud finding and to the best of my own knowledge has never taken advantage of any of them are far from so she could have first of course filed a timely motion to reopen reconsider before us c i s within thirty days of the adjustment of status denial he could have sought e p a review in district court he could have filed the untimely motion and that regulation eight c f r section one hundred three point five eighty one you just have to show that the delay was and i'm quoting delay was reasonable and was beyond his or her control so of course ineffective assistance would be a conceivable basis that would fall within that another option and probably the most the likelihood the one that had the best likelihood of succeeding would have been to file a motion to remain with the board while his appeal is pending now of course but that meant if petitioner did not notify his attorney that that i that had been approved but that that falls on him because that would have if he had filed that motion to remain and then the board might have remained to the immigration judge to consider that approved i one thirty and how that played into that that judge's reasoning on the denial of the continuance but again he didn't do that his options that were mean now are a joint motion to reopen with ice with but of course ice has to agree to pile that because any motion to reopen now would be untimely so that a joint motion is not subject to the time requirements or i'm sorry my time is up  actually has the ability to consular process with his approved at one thirty he does have to go back he would have to go back to who the philippines and there are some other hurdles that he would have to face but that available to petitioner i believe his reading these are pretty much limited counselor processing is an option but don't forget if we have a departure order against him that is a bar for ten years he would also have to have an unlawful presence waiver as well that could be done but the removal order for ten years is definitely a impediment in terms of the untimely motion to omri mand i'm sorry though a motion to remain and to the board that would have been the ideal situation on fortunately in in september two thousand and fifteen bistro kind of a deal had come to my office and that's when he showed me that it proved that one thirty and