what we have here is a relatively simple case an immigration judge in the individual my client apparently was arrested for violating the law the state of new per arrest report at that time after submission of those documents us c i s determined that he had made a false claim to u s citizenship because not anywhere else on the record but on the police report the police officer wrote down the place of birth being puerto rico my client come from costa rica and then they started proceedings however before proceedings were started client went back to  proceedings now when proceeding started we did not obtain the individual for before the individual calvin we did not obtain an administrative record was not served it was simply provided a look at the day of the individual hearing after the immigration judge stated that to look at the record because he would like to proceed because there there was no need to adjourn this case because we were merely looking at the citizenship part i was a counsel of record i was there i looked at the record with coun and i'm not sure if you're familiar with in a file there are two sides one privileged and one that could be produced i was shown documents there and i was told that these are all the documents that existed what for the individual the immigration judge after hearing from the police officer in cross examination hearing from my client determined that the police said that a false claim of u s citizenship was made by my client stating that he was from puerto rico report this this letter from the patterson police the stated the police officer who testified could have made an error in stating that it could have he could have been costa rican state of puerto rico i think the letter is not from him no it's from his superior officer correct you take that to be true if you state it was from puerto rico can that constitute a false claims united states citizenship under immigration nationally acceptance use to twelve a six capital c or case two where it's not is it an actual benefit as opposed to or in addition to perceived benefit well i know some of the cases talk about actual benefit and it seems a little odd to me that we would discuss there's got to be an actual benefit when it's clear that in some instances there might be a statement of u s citizen ship when there is a hope or a perception that that untruth will derive a benefit if i'm understanding your question are you talking about the mental state of my client making it is that where you're  yes because some of the cases talk about an actual benefit you know i filed and i know because i i knew that if i put down that i was with and go and be right and actual but this circuit's the only student federal loans because he was a united states is stating he was united states citizen another one just doesn't happen to be a tangible planet yes i would state that has to be a real benefit under state or federal law that in order to congress is very clear about this they said a benefit under state or federal law it was not that any false claim of citizenship if someone states said they're in saddam united states citizen on the street corner they would not be subject to removal i think that's pretty clear what kind of not a three well it was actually kind of funny it was where the arrest took place was a street corner and under the new jersey statute it was it's he was engaging in behavior that would otherwise be protected by the first one but i guess the issue is here the immigration judge credits officer palominos testimony and says you know i i perceive that mr castro believed there was a benefit to be derived and that it would be problematic if this prostitution activity showed up in his record at the same time that he was applying for citizenship and my question is why isn't that permissible in our review is focused on your motion f reconsideration or only so yes i guess the question is what what is it what is the error that the i j a engaged in the area that the immigration judge in the boarding gaijin is not requiring that there be a benefit there was never benefit the police officer himself said there was nothing different would have occurred they would have called immigration services they would have not done anything differently they would have merely released and if you look at the record of the police department it's extremely deficient there's criminal prosecution and in there they state that it was wouldn't have been enough that a person stated in trying to apply for both the checked off was that they were a national of the united states not a citizen and that did not suffice was a criminal act does not suffice to act under congress in order to make the person removed permanently barred this is what happened here is my client is not permanently barred from any relief because of a perception of immigration judge that this is what he was s there is no he didn't even obtain money he did not obtain and he leniency there was nothing obtained by him whatsoever with this is clearly done is it's it's it a missed state or an error and if you look at the board of immigration appeals first decision there stating that if the judge found him in admissible as an overstay and that's correct however they incorrectly cite the overstay law as the the false claim the citizenship section of act now what happened is is that you can if in fact the judge said you were in overstay your removable but we're not even we may not be enough evidence for you to be declared to be removable under the false claim the citizenship charge but you're going to be perfectly barred from adjusting status really relief under the other charge because of their how i mean basically the government never prove the fos claim of citizenship the only thing proving here and which we admitted to was my client was an over may please the car at least the damiano on behalf of the attorney general good morning to you all and then there are two pivotal issues in this case the first is has the petitioner waived any dispute regarding his motion to reconsider by failing to raise an adequate abuse of discretion challenge in his opening brief and if not the second inquiry or pivotal question would be did the board abuse its discretion when it denied this motion to reconsider all of mr decision so any argument or issue in the merits the station or the underlying board decision must be pursued in a petition for review from that decision don't tell us anything more than  we would argue that you do act or a section and that a filing of the most injury consider is not a replay of the main event as the seventh circuit has said in raman it's not an opportunity for the petitioner to have another bite at the apple in this in this motion to reconsider he has to prove the burden is on him just so but there was a error a factor law in the prior board decision and here the board reasonably determined that he did not show a prior error of fact or law the board has said that when it adjudicates a motion jury consider it places itself back in time and it reviews the case again on the record before it in order to determine if it overlooked some air some argument it overlooked the fact there was a change in the law or some sort of you know those types of issues and and all it had was mr castro's two sentence argument unsupported by any law or explanation he didn't file an appeal braved the board on his first appeal all he no i'm saying that the board in the record had before it when it made its merits decision is it had two sentences for mr castro generally attacking the judge's decision he didn't lay out any arguments regarding the purpose or we well first of all let me just step back a minute and remind the court that what was before the judge was a charge of inadmissibility for making a false claim to u s citizenship under the law in admissibility has to be overcome by the petitioner by the alien the burden wasn't on the government to prove he made a false claim to u s citizenship it was a charge of de portability  ell i would i would strongly disagree with that because mr caster knew he had no lawful status you knew he was preparing to file just in a status you knew he had just been arrested for prostitution offen and he did not want to be removed from the country i would urge the court to look at this case just like somebody that misrepresents is alienate your citizenship at the border to gain entry into the united states here he was his view of the law the focus by reviewing courts as an actual benefit when it comes to the stature i would urge that the statute itself is plain and that it says any purpose or benefits purpose means intent under a reading from from merriam webster dictionary purpose or benefit articulated by home or perceived or understood by home well by the board because the attorney general has granted the board the authority to adjudicate in this area and if the board says that this is a purpose or benefit then the board's determination is entitled to deference to the board's determination regarding the intent of the alien is what governs the board's determination of whether there was a perfect purpose or benefit and i am saying here they determined that there was a purpose or benefit a benefit means  plain meaning of benefit is advantage it was extremely advantageous for mr castro to misrepresent his citizenship because he didn't want to be turned over to the department of homeland security and further he wanted to hide his arrest from the department of homeland security because he knew he was filing for adjustment of status and in fact if i can direct you to page one eighty in the rocker heard he misrepresented that arrest a second time when he failed to check off on his adjustment of status application that he had been harassed what let me ask him about the timing of this are we to look at the time of the allegedly force men at that time which was two thousand hadn't even thought it just been of same as at the time right they allegedly for this last go around of adjustment of status no there are some some indications that he may have of tried to obtain status earlier through the temporary residency program but that's not in the record well then let's stick to the read ok well even though he had not yet filed he stated in his testimony that he was going getting ready to file and he knew that this this arrest could have consequences on that tiling he also didn't want to be turned over to department of homeland security so there's two reasons he would have misrepresented or two benefits he doesn't want it to impact his adjustment of status application that he a fractured board decision was that with the things that it's not reasonable to take the other position it's not reasonable but the board's first of all the board's reading and interpretation of the statute is entitled to deference and also we're looking at the motion to reconsider an abuse of discretion we have to look at that decision through the prism of the abuse of discretion standard this isn't a direct appeal in considering  versus holder where she found that a representation of citizenship in an application for small business that will benefit was would have to review the particulars about case but i think if my understanding is correct that was a direct appeal from an underlying board decision and not i'm a motion to reconsider case but also that may have been a case one of the cases where we talking about deport ability and again the burden is on the government to prove clear and convincingly that the alien committed a false claim to u s citizenship for a purpose or benefit so you are saying that the board of i mean if it was if they ruled that it was not a purpose or benefit under the law then we would disagree with that case i'm not sure if that case hinged on the purpose or benefit clause of the statute in question  no not on the merits not on the arguments that could have been included in the petition for review from the underlying decision what i'm simply suggesting is that the arguments it's not an opportunity as i said to take a second bite at the you have to look at the the arguments through the abuse of discretion standard and here the board properly determine that mr castro had not shown an error a fact or law on its prior decision in order to warrant r consideration it did not act irrationally in deciding that so we can't get to the merits proper you know this isn't plenary review of of all of the merits we can only look to the arguments for reconsideration that were made and whether the board abused its discretion and under that highly deferential standard of review the agency decision will be reversed only if it was made irrationally arbitrarily or contrary to law and we can't say here the contrary to l by the board of immigration appeals of not reachable that amount to an abuse of discretion well your honor my brief does make the alternative argument and does say that we believe that there was a purpose or benefit here we do believe he made a false claim so we are not conceding are stating that there was a serious error made by the board in that you're just not allowed to reach it here what do you think about the following the immigration judge list muddled at times and mr caster did state that he used the word naturalization a couple of times and i think that's where the judge drew from in his oral decision that day that mr castro himself referred to the fact that he knew he was going to be filing for just in the south and mr castro use the word naturalization but your honor is right she naturalized in one thousand nine hundred seven however we would argue that errors harmless given the fact that there were several other reasons for his misrepresentation is filing for just the status is you know not wanting to be removed from the united states would she say to not an abuse of discretion for the board of immigration  the immigration decision will or honor because like i said that if that if that is considered an error which she was naturalized in ninety seven so in that sense that was an error i believe the judge was the for and to mr castro's own testimony but if i believe that the board was was correct in not giving that specific finding any weights given the fact that there was a purpose or benefit aside from those that consideration there were other things that mr caster testified to and that were in the record that would lead the judge to conclude that he made that false statement for a purpose or benefit under the law thank you thank you thank you where there is facts and credibility involved judge pollak is one hundred percent correct this is an application of law there has to be whether certain facts and extend if there is no benefit under the federal or state act then there is no false claim this is some bar to his adjusting status and in fact if you look at the immigration judge's decision he states that we have the ground of is deport ability much like the government said pursu would have been determined this was a misrepresentation not a false claim to citizenship there would have been a waiver available to mr castro he was not presented the opportunity to present his application for adjustment of status pursuant to that which is the the false claim the citizenship statute the board even confused the law here about why my client was ordered removed i mean that that's clear and in my motion to reconsider i went through this was as just love it or said a split decision of the board where one member kohl very clearly said i don't believe there was any benefit derived pursuant to this misrepresentation and that was clarified because the board's general decision was just that any statement or the judge's believing that there could be zero there could be a benefit was enough which it's clear by the other circuits  there they found that a petition for review was denied because an israeli national actually applied for united states passport have they had the application he was prosecuted for it's a nonpresidential decision there are this