eed versus thompson number twelve days forty two seventy one mr mosley and this  retraction and what i would call the specific intent requirement of tool for c one of the basis for rough what is an issue in this case we're turning first to to the minute as we deal with a time honored venerable rule  has sought to be accorded it goes on a preference status as the spouse of a citizen by reason of a marriage for the purpose of evading the immigration laws and when i look at that and i realize this isn't a civil context we have here is not removal mr my guess is they were advised to withdraw it or told that this could cause a problem and so they withdrew it but he when you look at the statute he sont to be accorded a preference status as the spouse o for the purpose of evading the immigration laws i think we have fundamentally two points here with respect to that ok with respect to de minimus and for the reasons that we've gone into i'll go into the  married was was sufficient they had no on the record is clear no intent to violate the law but doesn't the violation goes in the very heart of the visa ban section and i know you're making a de minimus argument and it seems to me that this is the heart of the section fraudulent or sham marriage for purpose is avoiding immigration laws it's a bore well judge fisher first of all with respect to that what we have here on the net in this part of the argument that is we have no intention to violate the law but the statute so that's another part that's another part of the argument but this you make the point that this is a violation under the under that concept i think is probably not your strongest point all right in the spirit of piling on let's let's look at it what i'm concerned about maybe my colleagues are using language very very similar to what i would consider a specific intent crime the statute says for the purpose of and in this case the board of immigration appeals accepted excepted that they did not act with with intention with an intent to violate the law i think is a very fundamental matter very similar are before we get there though as i review i j's opinion the i j a said look on these facts i find said look we accept the fact that you didn't have an intention to violate the law and the government doesn't dispute that but nevertheless we're going to say that that's a purpose that we've established  when the agency doesn't articulate the reason we do that all the time or periodic with this records but my question is how does the treasury doctrine interact when you've got two levels of agency review here like us c i s and as opposed to for example more viewing just well no security appeal or something like well i think you're we deal with the other fundamental provision of the a p a that only review final agency action and  final agency action in this case is the board immigration appeals decision and that decision specifically sets the fact that there was no intention of violating the law and other words we don't have the specific intent that's required  under this under this under this a under the statute i mean congress knew how to enact statutes where it said for example making a false statement for the purpose of of  changing an immigration benefit but the draconian penalty that's imposed by the statute i submit is far more it is it is limited by rather different language the language that says there has to be a other facts for example people may enter into a sham marriage in order to get health care or in order to get the schooling or you know nutrition or housing benefits or myriad reasons why an undocumented alien might enter into a sham marriage but here the factual record was pretty clear that the sham marriage was precisely for the purpose of allowing him to continue to work for this company remain in the country when he had no right to remain in the well actually that's not the case what didn't treat didn't treat this to the level of asian again we have a very we have a very severe penalty here which is bottom not upon doing something for the purpose of an immigration benefit it's for the purpose of but in any event but it really does require a knowledge and intention and these poor folks and the government doesn't dispute this acted acted naively without a issue of timely retraction if mr he'd doesn't win on this issue i guess the removal proceedings don't kick back and come back in the play one of their options does he have ok he doesn't that has been rejected in that regard the only argument left to him at that point is the exceptionally difficult one that commencing removal proceedings against him was unconscious was  that you look you agree they may have acted naive late without the intent to commit a crime precisely and so they the point here is that i think that one of the key points for mr mosley is he's trying to say that there has to be an intent element in eleven fifty four c because of the use of the word purpose if i do something with a purpose that means i do it with the intent or the intention of whatever the result i'm seeking and if the implication of what you said on page seventeen was that they really didn't have the intent i realize you said intent crime p immigration laws language in section eleven fifty four c but courts have have established that the evasion element there and that the purpose to evade element is satisfied where the alien intended to enter into a marriage for immigration times in a visa application to establish his excuse me it's the petitioners burden to establish the beneficiaries eligibility by a preponderance of the evidence and that's that's why this court among others is held up with something in whether it's immigration laws right under courts reasoning he did and that's because mr i entered into his first marriage with the intent with the purpose of obtaining immigration benefits that was the only reason he married correct your honor i did in doing that they have to conclude geez violate me immigration laws they don't admit that they that they needed you and our  you're not and but this isn't the only court to have held that the b i a has also explained that the question of whether somebody has entered into a marriage for the purpose of abating the immigration laws depends on whether the marriage was for the sole purpose course intelligence but no problem i can't be concerned about the time it's a ucas i couldn't find it quickly that's why i put the onus on use but i think it's important to see where the finding is so that contrary to attorneys an attorney mostly is contention the record does a stablish an attempt by the beneficiary to evade the immigration laws the following is a quote from the beneficiaries sworn statement provided to this service on feb twentieth two thousand  i was looking at my options to stay in the united states and asked carolyn to marry me and file immigration paperwork in her own sworn statement mr pickett also confirms that the beneficiary said elias wanted to remain and work in the united states and i wanted to help him on the last page of decision found that the petitioner argues on appeal that any violation of the law is to minimize in that the beneficiary and carolyn i never intended to violate the law we disagree the petitioners and beneficiaries admissions both in their two thousand and one statements which is what i just read and their two thousand and nine secular ations make it clear that they never intended the marriage to be a part of a bonafide partnership all right so they just made a conclusion that it was a sham marriage yes your honor but they he really attempting at that point to evade immigration was up by his own admission to get another benny so to speak a benefit but i don't know i mean it's the more you dig he didn't come here illegally and he wasn't in imminent danger of being you know having his time right now to be in this country that's sure your honor but if this court creates that that kind of exception and says now you know if you're not in imminent danger of being removed that applying for immigration benefits through marriage that's a bit of a a sham does not trigger that not all but the point that judge fisher was making is  trying to get an additional benefit but is he trying to evade immigration laws for the purpose of not being removed under the case law your honor yes he is and that interpretation makes sense because if this court said that he was not intending to evade the immigration laws it creates a rather large loophole that undoes much of eleven fifty four c and that case any alien could marry u s citizen whether they're in removal proceedings or  not apply for either a visa or a green card through that citizen and if they're caught either that or down the road they could they could come back and say i didn't know that what i was doing was unlawful i thought that my friend was doing me a favor  didn't specifically that they find there was no need to find a specific intent right ok now if we find that the statute does require specific intent does the record support that violation the record does support it in the sense that neither mr eden nor his former wife was naive and entering into their marriage well its ports in that the agency reasonably conclude agency's determination of that the eades did in fact enter into a marriage knowing that it was a violation of the immigration laws or knowing that it was intended to can for immigration benefits  not supported by the record now the this court's review despite the district court's decision is its deferential under the administrative procedures act that the district court got that wrong but this court can't disturb the agenc eleven fifty four supercars something more they have failed to point to any law whatsoever that does so in fact all the courts have looked at this issue including this circuit in one publishes a decisions the sixth circuit the eighth circuit in the p i i have all decided the reason that that's what that means is because it's revisiting the law isn't just avoiding criminal prosecution it can mean affirmatively accessing caracal benefits to which one is not entirely correct and the reason that that's a reasonable interpretation is because congress acknowledged to nine hundred eighty six that spousal visa petitions allow aliens to jump in line they don't have to wait for visas that they may otherwise have to wait years and years for and they may qualify for that though would not violate section eleven fifty four c i don't have case law on that i'm not positive now my only hesitation in saying that is that of course another consideration is that the iowa looks sad as is whether the intent was you enter you can you should i mean why don't why the agency would spend the resources of u s c i s to pursue a case like this one when the man entered the country legally and has a family here when there are so many thousands or millions of undocumented alien who didn't enter the country legally and don't have families here absolutely and you know it was my feel that this court may be concerned with that issue it certainly occurred to me but i think the issue here is that the i r s is bound by the will of congress and it can't the congress is congress as well is that you have the primary well congress is that of people who are undocumented aliens are here illegally they shouldn't be here unless there is some exception written for the law that allows them to be here here's a person who came here illegally and enter into and admitted right away that he entered into a marriage for the seemingly the purpose of getting it i won thirty are you sure that that's congress is saying that in that circumstance you must absolutely must congress of course as it always does remains free to create a statutory exception to section eleven fifty four see if it wants the agency to take into account certain factors such as u s citizen children and the entirely sure whether he's eligible for cancellation of remove all or part clearly that's not the issue before this court but mr eades in particular his challenge appears to be that his alternate removal is really what is the ultimate harm here that's why he stresses is his important the british interests and what is causing the most harm to his family and that's simply not the issue before this court c is bound under b i a law and under the statute to deny ms packard i had spousal petition because mr i attempted to gain immigration status through a marriage he had met was a agency decision or case law deference under chevron well i don't recall that the government didn't cite chevron but i don't think we do in this case because of the plain language we have the plain language of the statute the fundamental analysis you deal with the plain meaning of words and the word here is for the purpose for the purpose of evasion it's not for the purpose of obtaining an immigration benefit evasion purpose of evasion under certainly following from pierre and the supreme court's decision in the criminal side on bailey it's a specific intent crime it's not just that they entered into this marriage for purpose of getting a green card they had to do that with the knowledge and intent that they were violating the law ice decisions as if they'd just been established but what it what it lacks is a specific finding that they were that they were violated that they that they knew that they were violating the law and for this kind of draconian penalty to apply i submit that that has to be shown that they acted intentionally with the knowledge that they were violating the law because it's specific intent on its country to the other circuits while the other the other circuits had never dealt with this specific had never dealt it's icy with those decisions with respect to this with respect to the specific issue and certainly did not address bailey did not address it didn't have the benefit of this court's decision in pierre so in this situation i would i would urge that that you find that a specific intent to violate the law as not then established and reverse the decision of the district court or alternatively remand to the board to consider the excuse me the issue of