morning council morning ladies and gentlemen before we start to call the calendar today i have a few pulmonary remark that like to make today is the very first day  resign and i are very pleased to be able to sit with judge of his first time hearing a case on behalf of the ninth circuit judge ban comes to us from the san francisco superior court where he had a distinguished career and prior to that he had a very distinguished career as an attorney here in the city so with that i would ask that you all join me in welcoming judge carlos baer our newest judge to the ninth circuit co affects this matter this court has several cases have heard several cases made several dealings regarding the question of legitimate marriages and primarily has come down with the town of the petitioner and her husband travel from the united states from honolulu hawaii to the philippines prior to the marriage they travel together to the united states embassy in manila  document allowing showing that the husband was free to marry they came back they were married in the village and then they spent a few nights together he then returned to honolulu then some united states the parties resided together for a couple of days in honolulu and then the wife travelled to another island of the hawaiian islands the big island hawaii and the husband refused to travel along even on a short visit and there after the parties eventually separated and divorced  was no specific finding in the hawaii court and that's one of the problems in this case as you go through all the levels the hawaii state court the the immigration judge and the court well it says in the in the order don't as required by hawaii law they don't typically set forth how that fraud took place and the husband in that case and his attorney never specifically pl that you would a period of twenty seven months to finally come to the united states if in fact your intent all along was simply to enter into a sham marriage the idea in the concept of someone who wants to come to the united states and get a green card and there's that so desperate to do so that they'll enter into a fraudulent marriage is they're going to come as quickly as possible they're going to do everything possible to wrap this up to get their green card and move on with their lives they don't wait twenty seven months airport he took but instead of having a house for her as he promised he informs there that i'm living in a studio with my mother and so we'll stay at your aunt's house and i'll come visit you and then everything works out all right then what we'll get a place together so please thank me she returned when she stayed for two nights and then she got a call from her uncle on the big island who said come visit so she says to her husband let's go we'll go visit my husband on the big island see what that's like he says not can't i have to go back to work you go ahead and go so she goes and then she keeps telling him come on over this is very nice i like it here he doesn't come over for months and then finally he does come over and of course another argument develops in this one is where do we live do we live on a walk where he has his job or do we live on the big island where he now has a job but the argument was where  do we live together there was never any testimony that neither one of them didn't want to be together at that point and this is post marriage by quite a bit let me just shift your attention for a moment to the statute under sixteen i think it's four under on a hardship basis that's how we get to and she's thirty two faces one hardship and the one you're talking about when you've been addressing that she entered into the a only considers certain facts and that's one of the problems here in the marriage fraud area that the i j often just picks on one or two facts in this case they seem to focus in on the letters for example that the court has already address sargon in your in your in your petition what if you cried this argument and we did argue due process that by not having a full and fair review you don't have due process due process requires a full complete and fair review short and well that be i was short in the fact that they from our opinion they never reviewed the case at all they let it sit on their desk for two years and then they write a one paragraph yeah they die jay is correct that's their review that's not an independent full fair review of the case the i j a doesn't give a full review in the fact that she tremendous amount of evidence that was presented to her bonafide legitimate marriage with no no sexual question or whatever what about lying about it she never lied about anything and if you look at the record her ex husband is the one that that really i government would try to assert that any time the immigration judge or the be a makes a decision is pretty much discretionary and therefore the law has taken away jurisdiction from this court there can't be that broader cloak to cover all of the american agreement which is in the ok on the attorney general was made for the purposes of procuring aliens admission as an immigrant we generally don't have jurisdiction to review discretionary decisions of that what i understand is that i believe that you have jurisdiction to make sure that the attorney general exercises his discretion in a constitutional and fair manner and when he does not do so if you have the ability to overturn sorry that's a big part of our complaint yes as far as the b i a that it's clear to me at least that that decision making process was simply a rubber stamp and a rubber provided was actually that the petitioner is now in allergy ball for suspension of deportation because she can no longer well actually let me considered deportable if it appears to the satisfaction of the attorney general that the alien failed to refuse to fill the and his marital agreement which in the experience of the attorney general was made for the purpose of preparing the aliens admission as an immigrant extreme hardship finding and that the requirement for any good faith marriage or for the decision is going to require the immigration judge to weigh various the court satisfied that it was for the less and the supreme court in that decision found that that language meant that that decision by the court was up to the discretion of the court and not subject to review  to a decision whether to grant asylum i'm unaware of that particular case your honor however the argument in this particular matter is that the language of the statute it commits this that she never considered yourself as he was that's in the record at six o nine six eleven six fourteen she agreed that she only married because she her parents wanted her to get married and they wanted her to come to the united states again in the records six twelve and six seven and she further admitted that she had lied to mr del rosario and that's you know record at six twenty when she comes before the immigration court her stories changed and now it with regard to the deadline coming to the united states the immigration judge noted that that was a factor that could indicate that's petitioner wasn't just trying to get here as quickly as possible however the evidence also indicates that she may not have wanted to come to the united states but was being led to that decision by her parents so that could also be an equally persuasive explanation for this delay the immigration judge however found that when reviewing the t pending any further questions from the court judge seemed to have relied upon his testimony to a certain extent and he talks about being tricked into being married and yet he talks about consistently wanting to make love to to make a like with this man and he was the one that didn't want to get together and live in a place he was the one that didn't want to agree to a specific place so she did have an intent to form a mari