me and camacho pres for us c i s that the court of appeals does have jurisdiction to review statutory eligibility decisions these statutory eligibility decisions are completely different than that i agree with you it's a question of law and we can review that but the heart of jurisdiction question here is whether it's exhaust is administrative remedies and whether or not that's what this circuit split is  whether or not you have to wait to there's some removal proceedings or something is going to be going on just your honor here is just he's got an agency denial but they're not seeking to deport him and he could bring up the the one other method he would have potentially is a motion to reopen or a before the agency before us scary yes however this is not required to file this and that but he's he's not in deportation or i'm correct ok there is so they'd have to file a notice to deport against him and then he would have to file reopen he can challenge statutory eligibility decisions made by u s c i s after the denial of a cuban adjustment application we did sawyer on the bar of we do not have before us and does not have jurisdiction to grant in a riving aliens cuban adjustment act location in other words even if this mr pearl of ala was to be a note given a notice to appear in appear in the immigration  judge the immigration judge could order him removed but the immigration judge could not adjudicate his cuban adjustment application that is the same situation that happened in camacho pres of erse us yes before the eleventh circuit if he cannot if this negative statutory eligibility decision made by us yes the only method to review that is through a federal complaint alleging federal federal question jurisdiction in addition to  administrative procedures act so even though he had overstayed his parole after an expired and was here illegally he still considered arriving alien that is correct i was never admitted to the united states all parolee avail physically departed the united states for the purposes of eleven eighty two a nine to what is referred to as the departure bar he did not legally depart the united states because he was never considered quote legally within the united states due to his grant of indefinite parole under eight u s c eleven eighty two five given to him by us c i s i'm november ninth two thousand and five now the effect of this eleven eighty two d five parole is well known to this court and effectively resolves the issue in a before in this case in regards to mr avail as a legit disability mystery of ala's grant of indefinite parole from november ninth two thousand and five resolves to eleven u s c eleven eighty two d five is a humanitarian grant of is a grant that basically the petitioner is allowed to be physically present in the united endorsed the opinion of justice clarke from lange may ma versus barber ok say that again he's look he's here in the united states but he's not he is he is while physically present in the united states physically present correct supreme court precedent whole holds that he is not quote legally within the united states and quote justice clark from the supreme court in the one nine hundred fifty eight case lang may my barber specifically held that it would be inconsistent with the congressional mandate the administrative concept of parole and the jurisprudence of the supreme court to hold that an individual who was paroled in the united states is quote legally within the present so mr available did accrue unlawful presence or legal presence in the ninety's prior to receiving his grant of indefinite parole so the time that he spent on lawfully in the united states was prior to receiving the parole i'm ninety two to two thousand and five well actually after a legal illegal presence started to accrue after the passage of ira in one thousand nine hundred seven so it would have been from one nine hundred ninety seven to two thousand and two when he submitted his cuban adjustment application his first cuban adjustment advocation that was the accrual of unlawful presence however although he accrued unlawful presence that a lawful presence can only be used against him when it is triggered by a legal departure pursuant to u s c eleven eighty two a nine b i two a what is referred to as the departure bar it is it is not the fact whether he accrued that on lawful presence here in the united states for instance if he alien in order for this bar to be applied to them they must legally and physically depart the united states here mr of a low physically departed the united states on april twenty fourth two thousand and twelve but because he was under previously under a grant of indefinite parole the caseload clearly defines that a parole does not change the legal status of the alien and that under a parole they are not quote chain is that what you're saying that is correct because that if somebody here illegally departed but then been a worse case yes someone who did not have this role when they departed would be in the how was he in your argument would mean any any cuban who is paroled and departs without getting advance permission to depart hasn't departed right has not legally depart that applies to everybody it applies to anyone who is currently others so they have no obligation to follow the advance parole requirements well of c dance departure sorry wrong art course they would be subject to when they applied for readmission they are subject to the c b p's officer decision to unfettered in their discretion whether they want to repro them back into the country but the supreme court precedent of langmaid versus barber is clear that someone who possesses parole is not considered legally within the united states they are considered at the border detained seeking to be admitted into the united states and if it goes to reason if they are not considered legally within the united states they cannot legally depart the united states for the purpose of the departure or i thought the whole thing about this was to have a ten year period of illegal presence and the government didn't do anything about it and so therefore you can apply  is that right not exactly the ok presence as long if the unlawful presence is over a year which case mr avails unlawful presence was over a year right and they then physically and legally depart the united states and seek admission within ten years of that the physical and legal departure then u s c i s can apply this bar of inadmissibility to the applicant ok tell me what  client wants to have happen in his case he wants to be recognized as the for what specifically what mr avila wants nothing more relates to the procedural posture of this case this case was dismissed on a twelve six motion to dismiss therefore he only requests that this case be remanded for the district court to further consider his plausible argument that because his parole status he was he did not legally depart the united states and therefore los indefinite parole did in fact terminate upon physical departure that's fine that is why when he reapplied for admission that same day the c b p officer had to grant him a new parole into the united states however the fact that that indefinite parole did in fact terminate upon his physical departure doesn't change the fact that while he was physically present in the united states the case law is clear that he was not legally considered to be quote legally within the within a matter of hours but you're correct your honor he did not seek an advance parole thank you very much see that i've gone over my time thank you now for the united discussing and would probably need the opportunity to brief that for the court if you wanted to throw discussion however it is my understanding that this is the review of the denial of a of an eye for eighty five adjustment application statutory review of that denial under the a p a and because a statutory denial it is not a discretionary decision and therefore it's not precluded by eight u s c twelve fifty two b and the court would have jurisdiction i say that not being familiar with the circuit split that you're discussing and would really like the opportunity to look into that more he basically the removal if you were in remove all that  questions that he wants answered now his opportunity to get l p r status would not be addressed in that removal proceeding is he his adjustment and immigration judge under certain circumstances in writing this to say the remedy he's seeking here it can get our a move also therefore we have to have jurisdiction because you can't get it your honor i did not come prepared with and it does not change and aliens of lawful status i understand people who are paroled there are not here that they are here but it but what parole says is they don't get a lawful status they aren't a permanent resident when you come into the country you usually need a visa which gives you lawful status or adjustment of status which gives you lawful status these folks don't so he has been arriving a lan ever since he got here yes your honor that's never changed ever changed even even when the parole he overstays his parole time parole again which this time the time period was for an indefinite period that was in two thousand and five i was in nov ninth two thousand and five yes and then he's got three years eight years on law for president is lawful present starts in february twenty sixth two thousand and two and that just continues until he is granted indefinite parole until two thousand and five or not his unlawful presence started on april one thousand nine hundred ninety seven that is and he did and two thousand and two when he made his first adjustment of status position petition which you called by some number and  he had and then is he does it go into unlawful status again while his application was pending from february twenty second did the cruel time start again when his application was denied september twenty fifth two thousand and five ok and then he was granted parole less than three months later on november that's where you get the three months i see yes ok is another issue as you understand to be trying he's trying to get statutory eligibility for one l p r or l p r status ok and what is keeping him from getting statutory eligibility for l p r the he's trying to get l p r status through the cuban adjustment act and i'd like all adjustment an alien who plies has to be admissible there all there are many bars that deem an alien in the miscible to the united states from criminal to health to immigration violate it has to be admissible and what is keeping him from being messed up all the because  departed the united states after accruing more than one year of unlawful status unlawful presence i'm sure sorry to clarify more than one year of unlawful presence he departed and therefore he's inadmissible and cannot return for ten years i thought that the purpose of that i'm not quite questioning i'm just trying to understand because he departed united states after after a crime more than one year of unlawful status yes sure under the in abyss ability bar that bar is in  effect an almost an additional penalty on aliens who come to the united states and are here with an unlawful presence there are several layers of it if you're here for less than six months you have to wait three years before you can come back it is what congress put in statute in one thousand nine hundred seven to address the issue of aliens coming here staying with unlawful presence totally separate and that this departure bar business still exists no matter what they say yes or and there was no intention of the c a a to change this general rule  that's is that what the government says yes ok does this minimal departure which he he there's several things he could have done he could have gotten is i don't know what is it called advance parole it's called advance parole actually in the regulations called advance authorization it's called advance authorization ok before you depart in advance of departure of ok and what is the purpose of that to keep track of people i mean what's the purpose of advance authorization applicants for adjustment refugees and aliens here on parole seek advance authorization because number one if they have a pinning application and they leave it's can consider the abandoned that was the primary reason number two to get back to the united states to board a and explains many of these concepts it also if you seek advance authorization and receive it you can then depart and seek readmission and not be subject to th miss ability bar so that applies to everybody and so a cuban who wants to leave gets this they can go wherever they want and come back yes but he didn't do that yes your honor you're saying after april twenty fourth twelve when he drove the truck our when he came back and he couldn't come back and as arriving alien for ten years yes your honor and not be subject to th  even if an alien gets advance authorization the officer at the border has discretion to issue it for even if he fails to get it the officer at the border on the way in or the way out and i'm sorry if he gets advance authorization departs when he comes back the officer at the border still has discretion to consider whether or not to give him that to parole him back in really yes it doesn't work the other way anyone can depart and you want to conduct that coming but that when he's coming back you fail to get that advance authorization yes gratian officer can't issue it at that point arkan know when you're outside the united states aliens can apply for it to to come into the united states but that's usually took to submit an application you've you filed for just outside of the united states and you want to be able to come in you play for an advance authorization to get a travel document become it doesn't affect the fact that you departed ok i was just wondering if there was some way to undo the departure what you're saying is now yes having failed to get the advance authorization you can't undo the departure that's your view exactly you're ok ok out of about training you'd have to write ten years to to come back and you say he because he left after one year of he's and that mess hall for ten years when he went over to canada yes when he he had to wait ten years to come back or if he did he would become in under this provision having been here unlawfully for more than one year parts and he gets subject to the ten year bar yes that's how you say the reg regulations work yes a different standard but as someone waiver and it was waived yes but there was that for that waiver for a crime committed more than fifteen years ago he just had has to show he was rehabilitated therefore he could get he got a waiver from that in the disability bar is second inadmissibility bar was the ten year bar that one he had to show undue hardship law are you relying on for this just is that one day departure it was not even a day it was a few hours he delivered something accounting came back what plot why did they not catch him at the border then how does it get i can't he's on a truck and he'd have shiny papers this day just think he went out came back before wet foot dry foot there was a  cuban and therefore he was paroled back in he would still he would parole back in for one year which allowed him to to which would have allowed him to apply for just one again in the cuban adjust that was a lot it was indefinite for all at the time he went out very important to this case when parole allows availing to be in the united states and by regulation any any period of time terminates when the ele departs ok no parole allows for in and out in and out ok so his indefinite parole terminated at the time he departed ok denial it was for the application filed in two thousand and thirteen and that was denied both the application and the way were for the same reasons ok which was that parent or a spouse and he applied for a waiver based on his father and it was  demonstrate undue hardship when the parents thank you your honor it's important to clarify that mr of a low upon re entering the united states on april twenty thousand and twelve received the same exact type of parole that the petitioner in matter of arab elie received  parole onder eight u s c eleven eighty two d five although he did not receive an advanced authorization for it the when you receive an advanced authorization you don't actually receive the parole prior to leaving if that was the case it would terminate upon departure as defendant say and the regulations say but it's nothing more that they will be favorably considered for parole upon re applying for admission into the united states here mr avail into the united states the c b p officer made the discretionary decision to repro him into the united states the same way the c b p officer in matter of arabella in your ability made a discretionary decision to repro them into the united states about i think his argument is or he said the stat the regulations provide that once you depart without authorization your then existing parole terminates record that is correct and in this case mr avails indefinite parole he had previously he received did terminate however that does not preclude the fact that while mr available was in the physically present in the united states under this indefinite parole he pursuant to supreme court precedent he was not considered quote legally within the united states just as clarke was clear in his decision of langmaid barbour that alien who was present in the united states of parole is not quote legally within the united states he's just mean they weren't admitted no he meant that theoretically and legally he had they are not considered to be within the united states therefore it stands to reason if they are under a grant of parole they are not legally considered in the united states vaile respectfully request that this court reverses the district court's decision to grant the motion to dismiss and find that he has presented a plausible claim upon which relief can be granted for the district court to further consider upon remand which he respectfully request that this court thank you thank you cases submitted next case in the morning gabrielle