please the court michael codner on behalf of consolidated petitioners for this matter mario rivera belt as r and alberto mendez garcia i would reserve one minute respectfully for rebuttal the entire reason behind the cancellation statute under twelve twenty nine two thousand and twelve case the statutes purpose is to take it in vigils who technically are removable otherwise have strong ties and family unity and give them essentially a statutory break i would submit that these overtones in terms of the purpose behind the twelve twenty nine b statute are important when analyzing both of these petitions in general because both petitioners do have or did have the sufficient time in the united states and did have strong ties united states in terms of the equities which i will go over momentarily i think the overlying theme is that both of these cases place them within the general purpose of the of the cancelation statute now i would be remiss not to begin with the chevron deference issue in terms of the board's essentially identical decisions here in lying on the seat in starting and i think in determining the actual application of chevron i would respectfully refer to the supreme court's most recent decision in taurus versus lynch which is a two thousand and sixteen one thirty six supreme court one six one nine which was issued well after briefing in this matter i think it's reasonable to conclude that chevron's application is essentially in flux in light of the number of you in that case my support for that is because taurus would have seemed otherwise to be a prototypical chevron case where the board issue published decision on interpretation of a statute with potentially ambiguous statutes there and not only did the court fail to mention chevron throughout the entire opinion and the court acknowledged that part of it was invidious it essentially treated the cases they did proper for this case because of what i just alluded to in the beginning that both of the equities placed them behind the statutory purpose of twelve twenty nine now assuming for argument's sake that these cases do not invoked an over review and we have to refer back to the chevron analysis the government here argues for the analysis to and under one one zero one one zero one b one based on the statutory definition of child now obviously i can't dispute the existence of this language as this court recognized in montero martina's that a way back in two thousand and two but i would submit that these two petitions differ from on terror martina's where the n t a was issued in both of their cases and both of them did possess the that however i do think that the the reading in the government's reading cannot be harmonized with due process and as as that is my point in that situation and i can't do not think that it can be harmonized with the it and so was the statutory definition of child unconstitutional it's unconstitutional because when we're looking at the settled expectation i think it has to be read in a greater context of the of the cancelation statute as i stated the general purpose is to promote to provide a statutory break to ilya's otherwise it would qualify in an otherwise harsh effect and they are given the situation where they have a settled expectation coming in that they can apply for the statute and they can have the ability to have their decision heard have their application heard and when the definition of child is harshly applied within twelve twenty nine  that affects the settled expectation that they had when they entered in the proceedings so so this is all the expectation because the cancellation of remove all statute didn't change and that was one of my concerns with your reliance and so the change and the statute itself read together with the definition of child as a qualify relative as a child in someone who's under twenty one so unless he has an expectation that his child would get any older had one one year before the intake was issued that person had had obtained the ten years and there was one year from the time the n t was issued to the time that the application was was decided i think that that comports with due process with due respect what i do not think comports with due process is the factual basis in both of these cases the entier was issued in both these cases and we had five and seven years from the time that the n t was issued to the time the application was adjudicated that is where they settled expectation is being able to apply and having the due process concerns of being able to fully present your case the way that that was applied to them is what affected the settle expectation and i think it's important to note there's a difference when we're looking at the at the proprietary interests that the government sites in their briefs being granted relief it's not that we're arguing that they had a right to be granted relief that's not what what's being argued what we're arguing is that they had the right to have this case  within a reasonable amount of time one year as in cedar zambrano i thought is a reasonable amount of time five and seven years is not and these immigration judges are aware of these cases when it comes back when the case came back on reman d in mr marabout as are he had to have known that there was that there was x amount of time that and his ascension left there to twist in the wind and it's read in that greater context where i find the definition of child to be too restrictive when we're looking at the general purpose behind top twenty nine p h or i can tell from the record but if your client attempts to speed the process along the hearings and try to eliminate some of the for i think either of there's different cases so for mr rivera about his art i think first we have to start with looking at what the immigration judge did through a retro after avocation of the statute the immigration judge essentially the actions of denying for that disqualifying statute chewed up six years or i five or six years of the qualifying relatives under twenty one years my point is that the retroactive analysis at that point which eventually the government in so many words conceded by allowing to remain and finally it wasn't a new issue you know st cyr which had discussed retroactive application was something that was in effect well before that denied it was denied initially by the immigration judge that it was affirmed by the board of immigration of appeals we tried to do a motion to reopen and that was denied it went all the way back up to this court and then when it came time to simply for a decision the government moves to remand the case which obviously we're going to we're going to go along with but the point is that the clock is running at this time in the one i don't know the names that go with the facts but in the one case that after i got the case back from our corps sat on it for three years absolutely well but if i remember right your client didn't do anything in that intervening three years to speed things along this judge you could have suggested until basically the very end of that period at which point i don't know if it was your client or the government but somebody said to the b i hey what's going on and within i think twenty twenty two days or so after whatever that motion was to be remanded back to the i j a you know why would we say to your client in that situation maybe you had some kind of a due process right not for this case not to just you know stay in limbo forever but boy you really didn't do very much to you know try to prompt the agency to act more quickly that's a that's a fair question you honor the only thing i can say is and i love the board of the information judge together in these kind of situations and i look at the actual immigration judges find decision where had to if no there was three months left in theory that's a fantastic idea in terms of doing something that's not to excuse my client not having done anything in practice does nothing you know and practice essentially whatever effort is made is done nothing and i understand that it was remanded you know at that point but this is the point is  it was it was three years and this was on a government motion to remand and it there's no reason for it not to have been sent back i agree but i'm just i guess what i'm wondering out loud is you know your client's case here the right one for us to announce some new due process limit on how long the agency can take in these kinds of cases when at least in that one instance if mr rivera about as ours cases not mr mendez garcia's case is ok what about that case and there was no and that there was no appellate lawyer whatsoever there was no misapplication faxes just this was the course i don't but if i remember in that case there was a three or four year delay at the i j a level right what did your client do in that context the only thing that we can do in those proceedings is is not the dates you know in terms of the application it's not like this is a secret you know in terms of knowing when these children are aging out this is not a secret to anybody and having practiced before the immigration courts now for close to thirteen years you're at the mercy of when they when they set these these these timelines and you have kind of have to accept it and you can essentially say look and we're going to we're going to age out and more often than not falls on deaf ears i'm glad that the immigration judge pointed that out but at the same time there's nothing that can be done i mean it was already recognize that this was about to happen there and that's the problem in terms of waiting the five years and i think that that's the so there's a hearing set a venture right so there is so generally it really depends so generally what'll happen is you have your you know your n c a a in this one they were in the they were they were in arizona there was a change of venue you get the first master hearing you do pleadings at the first master hearing you get an indication of what kind of relief is going to be applied for the next master hearing is set if the attorneys on his game he brings in the fully document application and immigration judge at that point should set a master merits hearing and say you know anything else you know supplemental application and then the i j a just said hey i'll set a hearing in four years then it wasn't four years sometimes they'll set intermediary status hearing this me you know in terms of ancillary issues other chances of potential for relief where for example public d that you want to start a discussion if you want to seek with with government and they'll set it that way the overriding concern though is that i don't think that it's a secret that any of them know this is about to happen and referring back to my original argument it's the ability to apply for the relief and ability to fully present their case and have their case adjudicated that's the proprietary interest that we're looking at that point and i see that actually time will give you an good morning change offer for the respondent resubmit that the purpose of cancellation of removal is absolutely to relieve chip but it's not to relieve hardship to the alien it's to relieve hardship to their us citizen and lawful permanent resident relatives there was a previous form of relief called suspension of deportation that was designed to provide relief to the alien himself or herself that alien had to show extreme hardship to himself to qualify for the relief but congress  to change the statute and act a new form of relief cancellation of removal and that is designed to benefit the relatives the u s c relatives who would suffer the the us citizen and lawful permanent resident relatives who would suffer exceptional and extremely unusual hardship if their relative were removed to i feel a little bit at edit disadvantage this morning because some of the arguments i'm hearing for the first time today which make it a little difficult for me to respond for example the agency did not have an opportunity to consider petitioner's argument that the rule the that age out rule should apply at the time the n t a is filed that was not an argument presented to the agency but in any event that the agency has issued a precedent decision which we urge the court to afford chevron deference to finding that the statute clearly provides that the alien must establish this hardship to spouse parent or child who is a u s citizen or a lawful permanent resident and that child is defined as an unmarried person under the age of twenty one in the  riviera case just as a matter of factual clarification we absolutely had knowledge that there was a three year delay after the court this court re mandated in the case to the board but it was not petitioner who noted that delay it was actually the h s who filed a motion to ask the board to render a decision that motion is at page two twenty eight of the record in response petitioner actually asked for an extension of time that's it two or five of the record everyone was aware should have been aware that the clock was ticking petitioner sat on his rights by doing nothing for three years and then asking for an extension of time i mean let me just get let's put aside the chevron deference question for a second i know you have more to say about that but  process question i just want to be clear on what your what the government's position is are you saying that there is no due process interest in the amount of time it takes the agency to act on a cancellation  application just whatsoever or are you just saying that in these cases either the time wasn't long enough or the petitioner didn't do enough to sort of activate that that right we're definitely saying in these cases that the aliens sat on their rights and i'll tell you about mark mendez garcia what he did and did not do as well as a threshold matter we'd say that although there is a fundamental right to a full and fair hearing there is no constitutionally protected due process interest in a wholly discretionary form of really right that's what i was wondering if you're going to say so you would take the position let's say that the de lay were ten years the person filed when the child was eleven and literally every month from that point till the child aged out the petitioner was kicking and screaming demanding that some action be taken and that the agency just for whatever reason turn d a deaf ear to to those requests then finally one of merits hearing is held it's you know the child is now twenty one days and one years old or whatever and the j would say no sorry you're eligible go see the surgery decision you would say that there is just no due process right that can be asserted at all in that scenario i definitely dollars that's a that's a problematic scenario and i would i would hope that would not occur  i can tell you though that there is a remedy if that were to occur and it's a remedy available in these cases as well that is the cancellation statute is designed to benefit really families with children persons under the age of twenty one once and there are only four thousand grants of application available for fiscal year so it's a relatively small pool of people who might qualify so as a matter of allocating resources and once an individual an individual qualifying relative u s c relative turns twenty one that person can file an application for adjustment of status on behalf of their relative so a grant of cancellation of removal results in adjustment of status if if a qualifying relative ages out there are not eligible for adjustment through cancellation but they're eligible for adjustment through their now twenty one year old relative who can file a visa petition on their behalf that's also a very lengthy process th very lengthy process or can be well let me take that back for individuals who have children who are u s citizens that u s citizen is called an immediate relative so there is no long wait for a visa to become available as there are in other cases where you are trying to immigrate through another family member once that application is processed a visa is immediately available adjustment is available in neither of these cases is there any indication that these young men who are now adults in their in their mid twenty's have filed a petition on behalf of of their fathers as a practical matter for the delay in the the proceedings i've seen maybe one or two cases  where the the applicant wanted things speeded up in almost every other case there is there they are happy to stay in the country as a practical matter the how or in your experience how do the react to a motion trying to speed things up i mean you wouldn't be futile as opposing counsel says is there do they have process or rules for responding to those sorts of motions yeah  i can tell you you're right in most cases the long delay generally works to the benefit of the alley and it's more time in the united states in fact part of the reason the the board in matter of his cedric crafted the rule that it did is because additional time generally accrues to the aliens benefit they have more time to marry a u s citizen or a lawful permanent resident thereby acquiring a qualifying relative it accounts for life circumstances perhaps someone has a serious disease that now qualifies as hardship but yes there are opportunities to advance calendar hearings i have i have seen in in my work transcripts that reflect an effort to move the calendar forward that didn't happen and mendez garcia the other case in fact at the conclusion of the hearing when the alien was just the alien son was just eleven days away from from aging out the immigration judge asked counsel to provide supplemental briefing on the age out question and granted matter of the cedar had already been decided that at that point but the immigration judge asked counsel if he wanted to address any argument relating to the fact that his client son was about to age out he didn't file a supplemental brief of any kind and that's on page one eighty one seventy two he said to the i j a the only thing that he was concerned about is that his client had a piece of paper to walk around with in case he got caught by law understand what your answer was to that ok so because we have to write an opinion obviously in this case or we need to write something to dispose of it so what's the rule then that you would ask us to adopt there's in my hypothetical you have a lock there's no due process limitation on the outside at all or rather you ask you know just to decide on the particular facts of these two cases the petitioners didn't do enough to assert their rights what's were you come down yeah i think we would prefer that you say that these two didn't do enough but in general there is no protected liberty or property right and discretionary discretionary form of relief from removal and that in any do even if there were a due process violation the alien r is required to show prejudice and as i mentioned earlier there is no prejudice because there's an opportunity to apply for adjustment through the now twenty one year old relative in these two cases in particular there's also no adjuster sorry there's no showing of prejudice because we don't really know what the hardship would have been to either of these these two now twenty one year old over twenty one year old individuals the rivera case there's simply no evidence of hardship whatsoever and in mendez garcia the evidence of hardship is that the son suffered from school the osis when he was a child but that it was better and that's at page one thirty eight of the record in fact at the time of his two thousand and thirteen hearing he didn't even have a appointment for a follow up until twenty sixteen this year that prejudice occurred both of these cases would need to go back to the agency to decide whether the allianz established hardship whether the aliens or persons of good moral character given their criminal histories whether relief is warranted as a matter of discretion again because of their their criminal issues and i ask you this when your analysis of the due process violation i'm just wondering if if it was quite quite right when you were saying prejudice isn't the prejudice simply that i was deprived of an opportunity to make the showing that you just mentioned would need to be made on remount i would think that the petition would need to show that they would have a tamed cancellation rather they would just need to show hey as a result of this long delay i was deprived even of the opportunity to to sort of make the hardship showing the like and so all i'm asking for as relief is just to be put back in the place i should have been which is to have the i j a now hear the merits and then it's a discretionary call one that says you know what i'm not even going to address the merits because your child has aged out you are now statutorily ineligible for release so that's the end of the decision making process it just seems to me the route the remedy if there were a due process violation would just be simply to say that no you were wrongfully deprived you wrongly deprived of the opportunity to have the i j a make a marriage determination we're just sending it back for that to happen and maybe if that the borderline case the i j says ok well now i'm told that i do have the statutory authority to consider granny this relief i'm going to do it because your case isn't compelling enough that that is certainly certainly one one remedy  think again we we would hope that the court doesn't go that way because we believe that the agency was acting in full accord with its own precedent when it case the alien did not even have a qualifying relative at the time his application was filed his son was already over twenty one by the time he filed his application for cancellation of a i am not fully aware of the details i understand however that there are discussions about prosecutorial discretion under way and in that case i can assure the court in the few indians with strong ties the united states and promoting family unity which again think puts the focus as well back on the elite as well in terms of as well as the qualifying relative councils argument as to rivera that he had a child that had aged out when he was twenty one already by the time the application was filed isn't necessarily a full reading of the of the record from the onset of the matter mr rivera indicated that he was going to apply for cancellation  the immigration judge looked at the conviction record and said that i'm preterm it in any kind of application so the actual final on the application that point would have been superfluous because the then sentence through the rabbit hole of appeals and everything like that and eventually when it still is a process that takes time but i think equally important is if we're to take counsel's construction here cancellations tonight then we go to just on the status well the problem with that is that cancellation has been denied he's been ordered removed at this point so he has an order of removal against and so it's not the government's discretion essentially to kick him out at that point if he wants to it could potentially need a waiver and it further links and lengthens the process as to continuing application that counsel referred to with the siege rosano i think that subsequent to language from part tap is something that says that to address these potentially changed circumstances from when the time was