good morning everyone well you are really ready to get our st case has been submitted so the next case for argument is bare v bar good morning may please the court my name is corey hong and i represent petitioner there i will start with the with the holding issue and then turn to the adjustment issue on the withholding the b i a made two errors improperly in not properly applying look st at the nature of the fence which is defined as the elements of the crime before determining if it is particularly serious or not now st i am not arguing that the categorical approach applies to the crime inquiry it absolutely doesn't that is clear facts absolutely can and should be relevant at step two but the key issue in this case is that french rescue and nam both say that step one the agency mu to the elements of the a crime if the elements involve the potential for violence injury endangerment proceeds to step two but of the elements do not involve violence injury endangerment quote the individual facts and circumstances of the offense are of no consequence and the alien would not be barred from a grant of withholding of remove all quote here a felon in possession of a firearm is a pure status crime it is a rare crime it this is a felon who managed to shoot up the house in front of his family can we take can take that into account they could as a matter of discretion but when it comes to this issue where we look  not charged and not convicted is not relevant at step two again for references step one is to st error that we have to have the agency be bound by i its own wording but if we produce the cases to call for looking to the element of the offense but i don't see anywhere where it requires an explicit discussion of the offense and here it's a relatively straightforward crime a felon in possession of a offense the elements do and the wording in the own decision says that if the elements fall outside of something that can be endangering it is no consequence and the person is not barred on that nd step if the court disagrees and the proceeds to the factual inquiry again the better resolution of this is the go sefi case in the four circuits where again nam says quote does not call for consideration of conduct that is unrelated to the crime says has to be related to the facts and the evidence supporting the elements of the conviction now here if there is no aggravating factors arising from the gun or the ammunition of the crime there were two rifles and a handgun it wasn't a machine gun it wasn't an arsenal of hundreds of gun it wasn't a sawed off shotgun and you say we're not to allow to take into account the gun was actually fired in front of the person's family according to yourself the we can't because the can look at the circumstances of the crime at step two that's the nd factor so that is the nd errors of the court disagrees with me on the st error even if we go to the nd air as yourself he says we still have to look at the conviction not the conduct the particular serious crime in creek cannot be just a bad person inquiry that is relevant at different points in immigration law that be element relevant for exercise discretion for asylum it be relevant for exercise discretion in adjustment but those discretionary factors cannot be unmoored from the word a conviction which is relevant to whether there are some things particular serious crime not particularly serious kind that a particular serious bad guy which is what this turns into otherwise but the risk of harm that comes from firing a firearm you're saying that's completely irrelevant untethered to the possession of a firearm it is because he wasn't he wasn't charged with that for some reason the prosecutors reviewed these allegations and did not deem them worthy enough or adequate enough or sound enough to actually bring charges and this is different then french rescue itself in french has skewed the question was whether was a burglary and francesca said well there are instances where burglary could be particularly serious and instances where there weren't and there french has to be said well let's look at the facts and there they said look this burglary it was of a residence and that's bad but also the person wasn't armed limitation because what happened in this briefing itself if the government is given license to just make and this a bad person inquiry what they ate what the government did to this court they said yes even though the agency hasn't considered  the decision that they are to i'm going to introduce it and bring in more bad conduct and more speculation more evidence because i want to see that is a guy for five or six more months it would have been particular serious crime anyway  if the defendant had or the petitioner here had gotten a slightly higher sentence it would have been particular series yes it would have been place i think or months or whatever it was absolutely would have been a per se and then we're at a whole different increase but case this is the only case where said we start the error started at the nature of the offense in a r t s they greed that the lewd conduct of a child falls meets the elements at step one so then you can look at s so that is how that case is distinguishable and upholding here would not disturb that in any way now turning to the adjustment issue there are also two reasons why the court should  adjustment application st the regulations support mr bear's position that asylum status is terminated and returned to regular removal proceedings that do not prohibit adjustment that is is in this regulation that has captioned it as a motion to reopen but that is the that caption doesn't have any magical meaning the regulations do you know the v i i in its caption it turned it into  only get a green card if you are an aside lead and there are two authorities that support this matter k there is the highly was in the same situation where the t h s alleged that the and there the i j granted adjustment without dealing with the terminations on appeal the d h said this is wrong they need to terminate the b i said no the i j a has discretion to just grant adjustment without even terminating status so he was an asylum at that time on the nd place so your point in your argument is and we will hear from the government but your argument is that this is no longer an asylum only proceeding it started out as they did not yes your honor in his capacity as a store absolutely ok and you say he said some point it it evolved into a full removal proceedings the magical moment was when he was granted asylum and an eleven and fifty eight that statute says you turn into an asylum k said that when someone's alleged to have that terminated the i j a has a discretion to grant asylum without terminations so there is no they did not have to do that and  the th circuit and see we have the same situation where they said look under the statutes in the regulations the i j a has the authority to determine which remedy it wants to deal with st it absolutely has discretion just to this island without terminating status and now the difference is that i have the regulation i have k i have the th circuit decision that the d h s s says has no authority for its position that wants to stow away always a still way that actually defies logic because they said themselves that he could have become a citizen he could have gotten a green card and the only way you do that is that if your status becomes an asylum at the moment he was granted over his asylum me over his adjustment of status application given that he was an asylum only proceedings st with respect to this elements based inquiry that petitioner is arguing for that was not st presented to the agency so that's an exhausted yes just your challenge to how the agency went about finding that his crime constitute a particularly serious crime but this particular elements argument is quite specific and if it is to be alleged as an error the agency should have the st opportunity to address it given that this court has given wide latitude to the agency in terms of the particularly serious crime here and therefore we remain preventer or not know if the court finds that the failure to consider the elements is requires a specific discussion which it never has before then yes the court should be allowed to or this does mean the board should be allowed to to do so in the st instance but however that's so with respect to questions of law and whether or not the agency properly applied its standards is a question of law that the court can consider the novice so assuming the court will consider these points nonetheless the question is whether or not the court is going to  essentially overlay a categorical approach inquiry to the particularly serious crime and great petitioners claims that he's not doing that but that's exactly what he's doing sir to require the agency to specifically discuss the elements of the crime is simply categorical approach is there any indication on the record that the i j a gave consideration to the elements of the offense that i j did not expressly discuss the elements of this conviction circumstances of this case with respect to those circumstances those were brought into issue by the by the petitioner so the issue of what exactly happened there certainly matter again this court in consider that and again in n a m and as this court has endorsed the ages the agency can consider all relevant information including information outside of the record a conviction that's explicit and i am and forty two sort of try to limit the court and limit the board to looking so taking this st step looking solely at the elements simply doesn't make any sense with respect to how the agency carries out this  and that's consistent with blend you know mindy you know this court's decision two thousand and thirteen which question and i am to the extent that it held that the agency could explicitly find that a crime was a particularly serious crime based soley on the element that has to go both directions they just he has to consider everything here and the facts of this case patently show that being a felon in possession of a firearm is indeed a particularly serious crime and that makes entirely makes sense given the seriousness of the right involved in binder up versus united states attorney general the nd circuit noted that the right to bear arms is a fundamental right so taking it away is not something that's done lightly a conviction that involved that is inherently serious to require the agency to expressly discuss that simply doesn't make any sense so you're not arguing already that felon in a position is always a serious crime  expressly what the gun there was but the point is that they did every i'm sorry does that make it a difference said it's where i give aid because it's a machine gun or something like that it certainly could but that's the point of the particularly serious crime inquiry because the court conviction cannot relate a gate the conviction what we have here is the agency evaluating the full record of this case which as i believe all of you have noted involves some very serious events including actually firing the weapon doesn't matter that he was not his sentence is certainly a factor that the agency has to consider and that he was subjected to a fifty seven month sentence for this crime there has to be a reason for that and that was because he was running an illegal pawn shop out of his home fired a weapon at someone to her direct arguments on those cases and any particular portions of them i mean that the way it's evolved in terms of those cases this court has endorsed again a very broad and discretionary inquiry for the agency so not sure exactly why she relies on francesca what's your response to her i believe her argument is that it mentions relying on the elements yeah yes and i am repeats that and he repeats that the agency should look at the elements and if the elements of that crime do not necessarily case so but i want you to go directly to her point her point is that that should have happened here why why is she right or why is she wrong she's wrong because the court has never acquired that explicit analysis of the elements and actually faulted the agency for stopping itself at the elements is that an eye is that we're in i it comes and i certainly falls into that category in as much as and i involved a dui conviction that on its face a dui conviction is not going to particularly serious but the court agreed that the agency properly exercises discretion in that case because the facts of the case involve that individual being so drunk that his car drove through a house again that's that's this  inquiry that is permitted under the particularly serious crime inquiry again we're not limited that agency is not limited here to this categorical and modified categorical analysis in the court has consistently indorse that and faulted the agency if it stops at the elements what's the best case out of the th circuit that supports that very point that you're making the best case out of the th circuit probably guerrero describing how the agency is given wide latitude and  with respect to to adjustment sure is correct that under the regulations differing results occur the critical point is that when an individual is granted placed into asylum only proceedings are mentioned in the affirmative argument that the immigration judge stated that he was put into removal proceedings i believe it's the ministry of record page seventy seven dollars the immigration judge explicitly says that asylum only proceedings not removal proceedings all right so is your argument then in essence once you're a stowaway you're always a stowaway regardless of whether the government had previously granted asylum status once asylum is taken away ve me both of those individuals had been admitted and it's crucial for administrators whose mean adjustment of status that you'd be admissible to the united they were already in full asylum proceedings is that they had actually been  twenty nine a being to forty proceedings well i think he were saved asylum but there are specific but so you're saying he's not eligible for adjustment of status back because he was never admitted this he could have been admitted he could have taken steps to take a green card actually after that even naturalized as in but he never did that instead he engaged in a excessive course of criminal x and that there's there's simply no no question about that but as asylum given the right to do once he got there just as you have to take steps to get to after he's been here for a year he would be would this point he can no longer do so brett because he's no longer in a slightly well as one does that happened when when did he lose his asylum status when the h s moved to reopen and that motion to reopen was granted that that specific proceeding accomplishes that there's no due process review any of the of the removal of the status there's a proceeding to determine whether or not he's had a separate proceeding the asylum status is yes but that was subject to review by the b was it not in this isn't isn't that this very case subject to review the terminations of asylum status yeah i don't believe fisher is challenging the terminations of his a not but the order is the order is important under your argument isn't it for purposes of determining whether he is eligible for adjustment of status because as an asylum he right he is still in asylum status as an ice highly then he's eligible for adjustment of status under the regulations it's eight c f r twelve away point twenty four g discusses what happens to this particular individual he is placed into asylum only right and he's an asylum who's eligible to apply for adjustment of status right now you mentioned that the government filed a motion to reopen but that doesn't automatically terminate his asylum status now there still has to be a process so during the pendency of the motion to reopen he still is in the highly who's eligible for applique for application of adjustment of status you not correct but once the immigration judge determines that he's no longer who is subject to an asylum only proceeding is that right as an as a sylia who was a stowaway once his asylum status is terminated and once it's terminated what i'm maybe we're talking past each other here it's if we decide that the i j a was wrong in determining that he's ineligible for applying for adjustment of status and we send that back can be i take consider his adjustment of status application prior to trying to terminate your status as an that's highly campy i j take up the adjustment of status application st that's a matter of k but again that's individuals that were admitted that were admissible would be allowed to pursue adjustment of status we've taken you over your time thank you counsel thank you i have three points on the exhaustion issue at forty two dollars forty three cents of the record mr baer argued to the v a that quote that i quote failed to consider the appropriate factors and relied on improper evidence rd judge when to answer your point yes there is no requirement that the that the i j a has to terminate proceedings st that is exactly what happened in k where the judge decided to grant the adjustment with out terminating proceeding the d h said this is air you can't do that and the b i l s cited two regulations under twelve o nine under the waiver provision and said there is absolutely nothing mandatory that requires terminations that it is discretionary that they may do it and so therefore we affirmed the i just a citizen to adjust status and grant the two and one waiver without terminations see we address those questions  and therefore the adjustment application could have been considered that discretionary with the immigration judge with the adjustment application which order the order is completely discretionary and the i j can make the decision here were to remain would that change the result of the i j a corrects the error would you assert would that change the result well your honor yes because the i actually never even considered the adjustment this individual has been in the that issue can be reached absolutely because she he's eligible for adjustment there's no question about that he has three us his and families has a citizen spouse so he has equities that actually are relevant to whether he would be granted highly procedural case and the question is can that occur in this proceeding and we've heard back and forth why it may or may not you can always apply for adjustment of status is there's no is a bar to each other you're all right thank you very much counsel thank you matter submitted for decision