a lot of presents three arguments in this case i'll mention them and then discuss them in a little bit more detail first of all we maintain that ms ruffle i know is eligible for adjustment of status and getting permanent resident status under the that benefit under the life act is is not clear i mean we submit that the the statute allows for two steps in that process first that allows for what's called a visa status  period while you're generally speaking for people who are are waiting until the priority date becomes current until they become eligible to adjust status so it does allow for some people to get that initial status and then when the visa clearly allows a person to remain in the united states until the person becomes eligible for adjustment of status and then at that point the person files were just in a status now because ms ruffle ana was eligible for adjustment of status when that law was passed it seemed it seemed like and she apparently thought that she did not have to file an application to for the for that first step that b visa status before she apply for just new status we submit that that's not necessary but in light of the government's objections we have  and this just occurred to me in preparing for this argument that well because the process is not crystal clear maybe we should file the application for the evie as a status even though she was eligible for the second step at the time the laws passed law had even been passed there was no reason or no basis for her to make any argument about the visa at the time of her hearing in front of the immigration judge it's only later five years later in september of two thousand that congress passed this law that would that id act top looking exactly how you're here by ok you're here somehow so and now we've got an application for adjustment of status and which has nothing to do with the main issues is raised in the district court was the effect of the application well the issue about the visa was attacked and there are two issues raised in the district court both of those raised in the breast before the distributor that you're now talking about an application made subsequent so this most recent application wasn't part of the district courts that's quite that then that application has been filed and i suppose the scorching wait then for a decision on on that application but that with requesting that we wait for a decision on that application most recent that's an alternative position initially we maintain that ms ruffle otto is impact eligible and for just on the status that she should not have to file that initial d v s application if this court disagrees with that then we would ask the court  decision until that these the application is that you to create it and it should definitely be approved she's clearly eligible under the b visa group provisions the only argument that the government has can make that she's not eligible is that the application for just missed that as has been denied the under the visa program a person is authorized to stay in the united states until the application for adjustment of status is adjudicated if it's a crew thing the person becomes a permanent resident and that's fine if the application is denied well then the f a and if it's a bona fide a valid denial well then the person loses status and is subject to being removed from the united states now the so under these a program clearly she can still ruffle on a can stay in the united states until there's a decision on that application for adjustment status now the government has said in the district court said that there's been a denial of that application now that's not really correct what we have and the government did just provide this morning another copy of an indication on the form i for eighty five this is the application documents that are in the file first of all and this is in the excerpts of record on page nine in the excerpts of record on page nine there is a a transmitter slip the car is technically speaking another act different from the life act although there were some in the car amendments in the life act so whether this means she's eligible under the life act or under the car is unclear but clearly the do the theater thinks that she's eligible thin correctly that she's eligible for adjustment of status i'm not sure whether she needs to ask the court to reopen or whether the service needs to request terminations i think that on either path suppose she was not the nystagmus and still someplace not matter you can you can you come to court and say well you can't you can't remove the titian or in the meantime because there's an application running well in this in this contest clearly yes because under the life act as an act of by it well that's exactly what the whole issue before the district court was about our claim was that she's eligible for just enough that she's eligible for the benefits of the visa program and therefore the immigration service cannot remove her from the united states  deportation order a voluntary departure that was issued in september of one thousand nine hundred five allowing her voluntary departure for one year now if she departs from the united states during that period of time then she has voluntarily departed from the united states and that order is satisfied it's no longer in effect any staff over the border a voluntary departure in lieu of removal exude deportation it's very clear that any departure across the border  person has and in fact the case for example where person went to see one of four for an afternoon and came back into the united states and went from california into to one and then back into the united states the same afternoon that was erroneous that ms ruff on no has not established that she departed and that when your voluntary departure period time it's still the magistrate judge clearly indicates that she did depart from the united states after that period of time  assuming that that's correct she left after the voluntary departure a period of time that constitutes a sequel to self deportation and that also satisfies the judgment against her once she departs from the united states whether it's during the well it may affect it in different situations in different ways in her situation because of the eligible because of the life act she would be eligible to apply for just kind of status the when she's back into the united states and this happens fairly regularly people who are deported come back into the united states and file applications for various benefits of attack that there was a bar and he failed to depart within the period of voluntary departure cation that gets shaved off and sent to the court of appeals but the other issues for example the issue about her eligibility into the visa program which is doesn't have anything to do with that order of deportation and the issue about her departure from the united states and whether seems to me they have everything to do with the attempt or you're trying to prevent the government from removing her by arguing that we've got this just in the status and so forth but it's hard for me to understand how that doesn't relate to in order to move well i think  individuals after a person has been ordered deported and where an individual claims eligibility for those benefits the claim arises under those under those remedial provisions so the challenge that you know that the objection to the  government's actions is not and objection it's not based on the efforts to remove the person from the united states but rather it's based on the claim arises out of those benefits in this case out of the life act from the like is not a real idea understand the real i d act addresses those cases where there's a challenge to the order of deportation it does not and specifically makes it clear it does not reach those issues where the claim arises under some  have a hey vs appeal immigration hideous appeal pending on the date this real id was passed we will construe it as a timely filed petition for review so does that mean this court is not treating this as a petition for you it appears that way  to answer without it was a question without a real clear answer but wouldn't it be wasteful really only economical to not take advantage of that transcript in three orders for three different federal doesn't have an effect we can apply a clearly erroneous test because they don't have jurisdiction or don't have jurisdiction anymore now i also understand the logic of what you say we've got to develop a factual record because there was no evidence you're hearing i take it you are suggesting that we can take the evidence submitted by the parties through the hearing and otherwise in the in the district court proceedings and then evaluate for ourselves and make ourselves into a finder of fact or role that the court of appeals is not very well suited for which the real id act appears to be to make us put it put in our future because there are bound to be factual type questions that come up in some of these claims and sent so you're suggesting that we take this evidence and make a determination of fact you argue we should be the same is the every day this cour comes before this court or the orders are tough because the sort of history of record include orders by jayson the i have authority to dispose of the cases in front of them the current state of the law of the real i d act cells as the district court although everybody thought at the time it had jurisdiction that jurisdiction was taken away subsequent to the district court's determination so i have trouble with the notion that we can import the orders in terms of a typical district court because to the extent that you can communicate back to washington this is a very odd bit to to assign these factual finding responsibilities to the court of appeals i think that's where we are right now and i think we can all agree th rare now we have this case in front of us and we have the real i d act of the train is change sound this the government contest that this court has jurisdiction over what  with jurisdiction to consider the entire case ok so now the case is in front of us and there are two elements as i understand it to petitioners argument one is the voluntary removal portion the argument that she did the part  be allowed to stay at least while that's being resolved and then we get to the sunday issue of whether or not there has been fact already veteran solution of that application i invite you to pick which one you think you must need to deal with and use your time on that all law chase the order was issued in the case final in about nineteen ninety five before the so called i rear amendments as to those cases our understanding is that there was no does a line or no maximum number and no deadline for filing motions to reopen those proceedings so at the time this rough los suffered the adverse deportation order why did she not move through open the proceedings what first of all why didn't she appeal to the  status issue i'm afraid we have a parallel reality situation here our understanding is that the life back to two thousand and cover situations in which an alien who's out of status or is an illegal status system of preferences and with that could requires in many cases a lengthy wait for your research number to be your priority number to come up you suggesting the petition your situation got worse because your husband now has applied for the fears and you know have an effect on what we should do i don't think so our our position is that that this court finds in whatever manner procedurally finds that she did not voluntarily depart that is the end of it because she is still within the statutory bar let me address one issue read the statute the we cited very clearly states that there is a ten year bar from adjustment status if you fail to voluntarily depart by steam opposing counsel bar and if i'm there only has been making that broad statement i apologize to the court of the council of my understanding is it is indeed a ten year bar she is still within the ten year part you can be eligible to apply for any kind of  who is past the five year bar to adjust status but who now has filed application of this a petition which is not an adjustment of status or the first step in the process and she does to go through establish a basis for for relief from the court so that the application can be educated which is how we got into this whole issue of whether or not the department the court need not proceed to the merits of her just put up with fish or put another way we can reject the adjustment argument based on our determination that she's still within the ten year period but that's but it is an unusual respect the court's intense review of  honour's first let me say something about this issue of five year tenure in eligibility and i would just point out in the administrative record i didn't include this in the excerpts of record but in the administrative record after page l thirty background about the real i d act and what was what congress was trying to accomplish it addressed the questions where people were challenging orders of deportation now and generally speaking the the appeal from the order of deportation goes from the board of immigration appeals to the court of appeals but for certain individuals per people with criminal records people who are deportable for criminal grounds would have to go to haiti as first challenging the order of  where you challenge other issues other than the order of removal those cases remain in haiti's proceedings section one hundred sixty eight says the district court shall transfer the taste or the part of the case that challenges the order of deportation to the court of appeals for those other issues here the challenge than under the law the life like the life that that we means with the with the district court and he has proceedings but but it seems to me the have to get in the district court in the first place to challenge the removal otherwise you're not you know hey this petition well she's in she's constructed i mean i suppose the order of removal gives the court jurisdiction a person isn't i mean technically speaking a person can't arising from any action taken or proceeding brought to remove an alien from the united states and the way you got to district court in the first place on haiti's petition was that action taken to remove her from the united states and that that gives the court jurisdiction but that's different from the claims that she's written that she's raising the her challenge is do not cheat she's not bringing a challenge to the order of importation that for her purposes that was a valid order and she doesn't have any objection or challenge to t that the immigration that this portrait order the immigration service to should should hold that she's eligible for benefits under the life act and that the immigration service and quite frankly we don't care whether it's c i s or eli our or whoever but somebody has to adjudicate that application and we submit that if that's honestly invalidly adjudicated she meets all the requirements and she would be granted permanent resident status as congress intended this is congress intended for people like her to be able to stay congress review it depends what the immigration service does and that situation if the immigration service denies it in the context of removal proceedings by an immigration judge looks at it and