with or without the firearms conviction remaining in place he is also eligible to apply for cancellation of removal if the firearms the portability ground is he came with his parents thanked his parents later became more permanent residents of the united states and he has remained with them and his brothers his parents now both critically ill one of them having a bipolar disorder that being a preference category requires a wait of considerable length of time for an immigrant visa to become present in two thousand and three he was convicted for transporting loaded firearm in a vehicle on a public highway is that mr minor oklahoma offense that is correct in two thousand and fifteen the immigration service bakos application cancellation of removal on the basis that he was in eligible due to the firearms conviction this then went on appeal to the board of immigration appeals while it was at the board of immigration and sorry the board of immigration appeals came back with a denial and in that denial they stated and emphasized the would any threw out that particular statute other being called matter of cortez and in both of those decisions they changed the statute changing the conjunction or to the conjunction and with regards to the before this court and then a petition for review he also filed a motion to reconsider with the board of immigration appeals saying you've raised it you've opened the door we would line like to discuss this imp the board of immigration appeals why are sorry while the board immigration appeals was deciding that motion to reconsider mr florestan balkan's priority date became current for his immigrant petition allowing him now to file an application for adjustment of status inside the united states congress pacifically exempted the fact that he entered without permission and forty five dollars on adjustment of status the board of immigration appeals said we are not going to allow him to remonde this as part of the motion to reconsider and they denied the motion to reconsider that they denied the motion to remodel the horrors of walker then filed a nd petition for review you do know the procedural history i know it's intricate so you can keep going but but maybe you've got an intricate set of arguments for relief one is the n t a deficiency the nd is this adjustment of status point and then the more fundamental one it would seem to me is that he isn't disqualified do you want to tell us which you think is the best argument for relief your honor i believe the best argument through release is the case gets remanded back to the board of immigration appeals to reconsider the motion to reconsider that denial and then he can move forward with the adjustment of status based on the immigration act section two hundred and forty five which is entirely eligible for the firearms conviction has no effect on that the government has a ready agreed at the very st immigration court hearing that there is no crime of moral turpitude because the firearm statute doesn't require intent the the motion to reconsider if you read the regulation it specifically provides that if you are in a motion to reconsider you can also the court to remind now if you look at what the border immigration appeal says in remonde is it is any new set of facts which would substantially change the outcome of the original decision it does not require any time the motion to reconsider requires a time it is discretionary and we've had battle but i'm really intrigued by the one thousand two hundred and twenty seven i am argument so so even though that's an uphill battle because most circuits seem to disagree with you i'd love to hear you make your best case if you convince th that this firearms conviction transporting a gun isn't one listed would we create would we create a split with another circuit yes or no i believe we probably would which one most well there's just a heck of a long list here and so it must be every single firearm offense that scuppered but you want to then what happens to the statutory rule of interpretation that when congress makes a specific list that's the list you can't expand on it and when congress applause i think that's a why of all the court's gone wrong i have no idea and you want to consider this if i was a bus driver by driving a bus with forty people in the bus and on an oklahoma highway and one of my passengers happened to have a loaded firearm without a carry permit i am responsible and liable under that statute i'm transporting a luggage you're responsible my bill it has to be we'll hear from the government but it has to be that you are constructively possessing it even if they're at the back of the bus that it's in your power and dominion somehow if you want there's no law that supports that but how can i possess it if i don't even know it's there well but oklahoma requires you  and willfully transport the loaded gun so i guess the counter argument is how could a person knowingly and willfully transport a loaded gun and not have constructive possession of it without being flippant you're on it if i could agreement that we all say yes we have to read and we have agreed to we have now knowingly agreed that we understand this and we haven't we haven't wanted to we accept it knowingly doesn't always mean that you have actual knowledge knowingly also means that you are responsible and you should know even if you don't have a stack of said knowingly and intentionally the iranian says knowingly and willfully and willfully and willfully is not the same as having the intent to commit the crime wilson he is you intend to drive the car well but if you drive the car knowing that a passenger has possession of  not aware of you are supposed to have knowledge that distracted and say that it requires proof of knowledge in order to get a conviction are you going to with respect i think we disagree on that point and th we're at the beginning of a very slippery slope on this where does the congressional list end if congress makes a list it makes a list if congress has changed that list over the course of history which it has done it has still made it specifically limited if congress had wanted every single statute possible related to firearms to be applicable it just would have said any firearms offense if they had wanted it to apply to people who hadn't been admitted and people who had been admitted just like to drug convictions and just like crimes of moral turpitude they would have put it into both sides of the statute in a miss ability style and they would have put it into the removal side they chose not to we asked you both to come prepared to discuss muska relevance does that have is that germane to this discussion yes it is your own must corella very much so because there you have two different defendants one is l firearms into a bag and he's actually carrying them the other person has a gun in the lock glove compartment and he's carrying carry does not equate to transport and again we go back to the bus driver actually nook a must corella i didn't find it i was hit with the arguments to carry the supreme court is serious said kerry does not mean transport that's correct your honor it does not mean transport and then that ties in with what congress talk about transporting they talk about caring they talk about possessing these terms all have their own meanings and muska rather argument so you're on if you prevail on this argument that it is a qualifying conviction then what what also with fifteen seconds to go you also about the service of notice to appear and whether that is deficient or not the immigration act provides that i guess i specifically asked is it waived by virtue of appearing anyway under our chambers decision i don't think it is your honor and the reason why i don't think it is is because it's subject matter jurisdiction the immigration bord you are from the office of immigration litigation from cancellation of removal and it also did not abuse its discretion in denying reconsideration where he failed to raise an argument he couldn't raise and raised for the st time on reconsideration and his motion to remain and which must be assessed under motion to reopen standards was untimely and he failed to show exceptional circumstances and it's worth noting this court lacks jurisdiction to review the board's assessment that clear this point to dive and you seemed most interested in the firearms conviction assessment in this case and the board's definition or excusing the i am i definition as the board a plain on its face and two circuits the th and the th agree that it's plain on its face that the inclusion of additional terms such as offering for sale where possession is not even required a gun doesn't need to be textualists and congress wrote out each specific line and left out transporting which under state law and federal law is always a separate crime so it seems like if the text says specific crimes and doesn't say all as they did more in the drug controlled substance area congressman what wrote and religion then done then you sort of think well where the other circuits go wrong but the th from the th when they made the observation that it's comprehensive they still each time placed the conviction in one of those explicit yes yes so here we've got one that doesn't fit in one of the explicit it does because possession is included within transport construction and sport is included within possessions which you're saying yes there but there but the supreme court says not so in my school in most carollo though if you read carefully the supreme court it's looking at a very different statute here let's let's start with our oklahoma statute it's transporting a singular loaded pistol and must carollo the supreme court that the statute it was looking at the federal statute implies transport implies movement of goods whole so it's understanding of transport in the statute it was looking at when it was comparing whether or not truck transport which is a companion statue to the terry statute in that particular federal offense transport has a different meaning in the context of the statute that the supreme court was looking at again transport implies movement of goods in bulk was limited to that statute when they say transport isn't carrying yes but in this statute it is very in possessing it is carrying because again the oklahoma statute says it is unlawful to transport a single loaded pistol your best authority for that you said was also the supreme court the best decision the transporting necessarily requires an element of possession yes absolutely you but  that it was a very important proposition that language doesn't appear in the supreme court past decision doesn't the proposition exists ok did you attribute direct language to the supreme court now th did though in its reasoning which incorrectly which gets me to the nd is that in correct it's not incorrect i think it i think the board extrapolated and i don't think it was wrong as part of its analysis which gets you to my nd point if you don't agree that the plain language of the statute is entirely clear if there's some ambiguity especially given the sr circuits here because we have the th the nd excuse me and the aides that are doing what i'm asking right now in in the alternative to determine that this is ambiguous enough that under chevron step to the board's analysis the board's assessment of the statute is reasonable and not for for i'm just giving you the greatest chance to persuade me because i don't see any ambiguity i see a list of offenses and i don't see transporting i see the supreme court as doing transporting is different the federal criminal code says it's different the citation to us whatever you're saying your breath may be accurate but it it doesn't stand for the supreme court having said it so i don't see ambiguity here and why would the congress have been able to write any drug offense and not written and a firearm offense congress cannot imagine every all fifty states what types of firearms offenses specifically all of the language and it must include it cannot be you waited from something as serious as carrying and possessing at times especially if the weapon is loaded offering actions congress knows how to reach for them they can be over time they keep but as to transporting we're just going to assume that it's in there i think given that this statute in particular as you as the as all of you have that constructive possession is an element of transporting and that necessarily means possession which is a definitive term explicit term in this think is that correct i was referring to the oklahoma statute an interpretation of the oklahoma statute as requiring constructive possession and what's your case for that the oklahoma says to transport requires constructive possession that would be then our brief the oklahoma cases and the a pierce case that counsel pointed out was actually a possession case not a transport case but the cases that we say in that the court also relied on under oklahoma law recognize constructive possession is part of transporting so therefore a transport which includes constructive possession in oklahoma meets the definition of possession in the eye in a very simple way if i picked up some say in a bus were an s u v and they've got a loaded gun and they sit in the back seat what's the st circuit law that says i drive or and constructively possessing power in dominion to control that gun he's got what's the case i'm not pointing to if that circuit law that says the so instead what i'm pointing to is as again the interpretation of this oklahoma statute which is what governs how a state assesses its own statute only be convicted of the misdemeanor offense if you have power and dominion over the gun yes and it must be knowing and willful as was discussed separate no rule for you could know the guy's got the gun but you're saying there's an oklahoma case that says the person convicted of the misdemeanor on the bus no i'm not saying that bus just power and dominion over constructive possession there is no specific case given the facts that you are that you're raising about an individual getting on the bus and the bus driver knows that that individual has a gun and an individual goes to the back of the bus there's no case for that but the transporting it here is a land borne motor vehicle and so what could be a boss for example it must be knowing in willful for the person doing the transporting and the guy must be loaded and again we're talking about a single gun not a bolt amount of guns like the muster reller case was discussing so i give in and given the sister circuits assessment here if i could just give you examples of what they have sound to being covered by the statute the th circuit sound a false statement in a tented acquisition of a gotten is enough to be an involvement of enabling a purchase and in the th circuit it was delivery of a guy in the stock in it was exporting these are all words that are not within the statute and then of course the th circuit as you recognize would be the deepest split if you go the other way because it is transporting a loaded firearm and that was under a hunting and fishing recreation law that they determined that that was enough to qualify as a firearms offense barring cancellation of remov who owned the car the driver didn't own the car the passenger would know more of the car and the passenger had a loaded gun in the glove compartment of the car  he didn't possess the care the power because he didn't have he didn't have knowledge of it he didn't have the power to control it so why would that destroy  one answer but additionally you just mentioned that he it was not determined and it was not it was not determined to be a possession offense for the driver because he lacks knowledge whereas here a conviction is required that they they must willfully and know that they're transporting so whether or not the passenger if we're to take your example there if if that driver knew that that gun was in the glove box and that the passenger put it there that they the driver was driving that gun around that very well could have changed the outcome and here you need ground on example the driver knew that the gun was in the glove compartment he just had no power to remove the gu well i'm sorry but you said he didn't know and so that's why i spoke to that the dominion and control aspect is different statute by statute in how a state interprets its own statute and here generic federal statute well here the generic federal statute and the board has said includes transport offenses so you have to you have to decide whether or not you agree and then the match would be whether or not the oklahoma transport matches the board's assessment that transporting which the board sad includes constructive possession you have to show you don't have to make the character or protest that this is meeting the categor take you st have to agree that the generic definition includes transport and then you would match up oklahoma to the generic definition which which the board says includes transport so that the statute pardon me the statute that you're talking about is not part of the categorical assessment in this case because it's limited to the ion days definition of the firearms offense as the board to use it which includes dispute is about what is the definition to use for the matching the what is the federal definition of a but everyone agrees that if and if transport is included that there is a categor at the carry using carry statutes and then you look at the transport statutes which are federal statutes together this is a sounds sits much more within the kerry type of offenses discussed and not within the transport discussed case because the mosque or rather case explicitly says that transport implies that language is specifically implies movement of goods in bowl here we have a single gun is enough to be transported it's and it's just like the facts in the scenario discussed for when they determined that having a gun in the car was you coolant of kerry for purposes of that federal statu very quickly i will address the other issues in this case about his his argument is that he cannot be barred because he was never admitted and this this statute in order to be determined removable requires that you have been admitted but this court has already addressed this exact question and read the statute the cancelation bar language as being an ambiguous that it's meant to read convicted of an offense described under and the reason that it added that word but that it's that the statute is still on ambiguous is because it's impossible to be convicted under the remove ability statute or the inadmissibility statutes this this court's need no decision for closes his argument and he entirely waived and the challenge to the reasoning behind nero because you did not even raise it in this opening brief or recognize that you have subtle law on this issue and for that same reason has raising it to the board for reconsideration where he could have raised it didn't recognize the  both you know recognizably board but not this court's earlier decision the board clearly did not abuse its discretion in denying reconsideration on that point as to his challenges about whether or not there was proper process and proper jurisdiction that sting those are the two he essentially raises trying to challenge that his removal proceeding served him or properly filed the notice to appear with the court had to be raised in this court's chambers decision stands for that proposition that he had an opportunity he actually admitted to the immigration judge that his client received the notice to appear and never challenged it his st time he didn't even challenge it on appeal to the board the st time he brought it up as before this court as for the pereira decision and his his reliance on that for whether or th circuit took a different analysis instead of looking at this as a claims processing rule that needed to be raised in timely manner but the outcome is still the same that that has nothing to do with whether or not the m filed in the immigration court could somehow be defective for purposes of jurisdiction vesting so every court has come out that an m t a lacking the time or location of a hearing is still enough to in the immigration court all of the other cases in the plethora of twenty two letters that he filed none of them address this issue and in fact they all support just like the pereira decision itself supports the jurisdiction vested they all support it because they all either remained in or found what happened to be appropriate not a single court or the board or even the supreme court questioned whether jurisdiction was appropriate despite the lack of the time or place of the hearing being listed in the notice to appear at the court has any other questions unless you have any of the questions you asked that you deny and dismiss the petition for you thank you thank you thank you very much your enemy i'd like to start with the point on the form part of a motion to reconsider the motion to reconsider was filed on time within the required thirty days the regulation specifically mentions motions to remonde and specifically allows for it the board of immigration manual practice manual specifically states what a motion to remand is according to the board of immigration appeals and that includes new evidence that would substantially change the outcome of the case below and it specifically says there is no time limit on a motion to remark and that's at the board of immigration appeals manual at five dollars your honor with regards to the transporting and carrying of a firearm the board of immigration appeals in the floor is a block of decision specifically states transporting is not included in the  they specifically state they are going beyond the statute and they are going to as the court correctly said apply the saw and allopathy all immigration asari of firearms cases so whatever firearms case we cannot catch within the we are going to apply it as your on a judge davis correctly said it's a categorical approach it's supposed to meet the elements of the crime as compared to the elements in the statute as miles said that if we look at the oklahoma cases they require dominion and control they require constructivism i respectfully disagree with mrs miles in this position but those positions are both briefed quite well in the brief that was submitted your own so if we are if there's a compelling argument texturally and let's take history but what would you say that there is a split that would have to be articulated or do you think the other circuits were still locating the convictions they were looking at with the m articulated defenses and they had ticked about panoply this means off a lot what is is there a split i mean just be as objective as possible when you're on up i think that florence apopka being a precedent decision from the board of immigration appeals and being relatively new is going to be the beginning of that discussion i think that the various circuits are going to look at this very closely and that was are going to look very closely at how far do we want to let the agency run with the legislation that's written by congress do we give it chevron deference or does the an ambiguous statute actually mean what congress says it means and do we apply just to an ambiguous statute because i respectfully submit it's a specific list you can't go beyond the specific list if congress had wanted you to go beyond a specific list as we said earlier they just would have said anyone convicted of any forum offense that said that essentially what they said they controlled substances that's essentially what they said with controlled substances and also with  you get convicted of one of those crimes that's it's gone but not guns and their priest says why what's the logical distinction and would you say a man like mr awad in the th circuit who had a loaded hunting just intuitively as someone who actually possesses a gun loaded gun you want to with most of these cases that you find the the respondent for the immigration proceeding or the defendant with a criminal over that hunting rifle and that really is what distinguishes us which goes back to the analogy of the bus driver or as the honorable judge davis pointed out the man who picks up a friend in his s u v who's got a