airport whether this is a question of law or a question of fact we prevailed either way if it's a question of whether mr gomes submitted sufficient evidence of his admission then any reasonable adjudicator would have been compelled to conclude that he did and that's here according to the regulations judge smith what is supposed to happen with a temporary resident when they seek entry into the united states as they're supposed to be admitted if they've been out of the us for less than thirty days which return yes that i understand it i'm not i don't mean to interrupt here that's going to answer so it was stamped in you know it was stamped in el salvador both on his entry to all salvador and on his exit but it was not stamped for whatever reason we don't know why we can only must have made a mistake which happens all the time and that's in fact why we have the proceed regularities standard under keelan tone and our inking which is a very low standard all it requires is that the alien present himself for inspection and then be waved into the into the united states and that's actually why i'm fresh and i know this i mean this isn't in this record so i mean correct me but i mean customarily being the people who are arriving on a plane in a controlled environment such as an airport have to be on a line and pass through a booth where there's an officer of the or who who's who is busy stamping document after document or passport after after passport i mean kind of you know this of course but i mean it's sort of defies common sense that that that any particular person would would be passing through those control facilities and not receive proper it's not a chaotic situation it's a very well organized situation correct me if i've got it wrong i don't disagree with you your honor and as i stated we can only theorize as to what happened one theory is that permanent residents when they enter the united states they are not required to have their passport stamped they are required to he was inexperienced he may have seen that temporary resident card which is in fact green and he may have concluded that the proper procedure was to hand it back to mr gomes and allow him to enter the united states you give the form forty and it's called a ninety four your honor it is a paper form and what that paper form states is that the alien has a certain amount of time that he can remain in the united states we're not exactly certain why the regulations require ninety four to be issued to a temporary resident because the temporary residence card already has an expiration date on it i mean we don't know whether that played a factor in this case as to why mr gomes was not establish that mr gomes was admitted unfortunately we took this case with only a few days to file a motion to reopen to the b i a i would not have been able to get that on the record and to the extent that pro cancel didn't do it we are alleging that he committed in effect assistance  going to be sure is it your position that he received an i ninety four and misplaced it or that he never received one i believe your honor that he never received one prior counsel in his brief to the board of immigration appeals stated that  he believes that mr gomes received one in the last it there's just no way to know which one of those is true certain is to go is never said that in an affidavit and so we simply don't know your honor given that he preserved all of these other documents for nearly twenty years i find it rather unlikely that he received ninety four card and lost it but anything's possible the three difficulties and approach issues this way when they're difficult like this one is sort of legal policy and facts are legally you hope you'll address the night circuit hernandez appears exactly actually what concerns me is and those of the lawyer before when he had the lizotte of factors require him to give a response and in that response he just says his testimony was somewhat not credible he mistakenly signed the i wasn't inspected just a little list you know that would mean for us reviewing that substantial evidence to a firm so legally hernandez just the standard of review is even his prior counsel said you know if they go the other way we just can't prove and then going forward my biggest concern is a temporary someone with a temporary resident status who never leaves cannot adjust so the fact that the government gives them the courtesy to leave to see his father puts him in an advantage is position over anybody else who had his same status that discretion airily the government didn't let go that's a problem for me it to the extent that the the ins made a policy determination in writing its regulations that temporary residents would be allowed to travel they must have considered the possibility that some of them would travel and that they would return but they didn't subject their action or potations may be entitled to skidmore deference is you don't write you don't get to get a benefit nobody else does we're giving you a courtesy so so if they haven't made that determination they're disputing that again your honor i think that they are they are making an argument as to that mr gomes should receive a permanent benefit from temporary residen little bit chaotic and therefore they would favor that that sort of works to undo the admission readmission is not an admission like the parole world right and i think we're talking about it to the extent we're talking about undoing it in mission we're not dealing really with the policy question you're on are we dealing with a legal question what is the actual effect of it see for it to be a point to you fork i mean there are a lot of problems with the government's theory even even if we assume that the ins should have had a policy that people who  left of the u s and returned pursuant to tamper resident status that somehow they should not be permitted to adjust their status as a result of that admission even if that's the case what we're talking about here is the effect of a law your honor we're talking about the effect of the regulation the regulation simply doesn't say what the government wants it to say ninth circuit's role and no i actually don't think that the ninth circuit is wrong and to distinguish what the ninth circuit did in what her name is arias was arguing from what we're arguing or not as arias was argu court has has referred to that type of admission in the case of tulu group to the rubio as a traditional admission that's what the definition of admission has always been even actually before iraq be a case of arguing goes back to nine hundred forty one and admission requires an entry into the united states so hernandez arissa saying my temporary resident adjustment of status was my admission and the ninth circuit says no because the temporary residence status expired mr gomez isn't relying on his temporary residen testifies even his date of birth gets extremely unclear the i j a the i just specifically finds him to not have any credibility issues as to his entry into the us and that's on the record page for forty seven so there is some dispute i'm glad you i didn't how can that be harmonized with the i just find it was that your point can't be about the i j a didn't conclude that no the i g concluded the i just pacifically says any credibility issues do not affect the issue at hand that's pretty for forty seven and the issue at hand was another whether question on there that says how did you enter the united states that question is actually ambiguous it doesn't say how did you enter the united states most recently it just says how did you enter the united states i believe that some page is it five seventeen  how did you enter the us mrs w y and his her question the purpose of the question there really is no purpose to it actually in regards to t p s it's a it's a it's an application for temporary protected status honor and there really is no purpose to the question of how did you enter the united states because a person qualifies for t p s whether they entered the united states with inspection or not and so the paralegals when they fill this out they put a w y to assume  at there's an inference that mr gomez was was making a representation that he actually entered without inspection help the most recent time we have to assume a couple of different things number one we have to assume that he knows what e w i stands for which he doesn't and number two we would have to assume that even if you knows that stands for entry without inspection that he would know what that means and he testified on the record that he doesn't know what it too without inspection i don't know that he did present all that they continue to continued he's on the stand the i j heard innocent explanation for it right and the i g didn't actually rely on any representation made on the t p s applications that got picked up somehow in the b i's decision and our position is court for a hearing on adjustment of status now your honor i have about a minute and a half left i would like to address footnote three in hernandez ariz that's the best place to look to distinguish between what the net is already talking about which is admission under the immigration reform and control act the ninth circuit actually released this opinion in august of twenty fourteen solely to add this footnote and specifically they distinguish our case in this footnote they  say and the footnote is at the beginning of the opinion and in the footnote in what the ninth circuit says is you've got two things in the immigration nationality act both of which we're going to call it mission one of them is the traditional definition of admission under iraq but like i said it goes back hundred forty and that is a procedural event all it requires that is that the alien present himself for inspection and then be allowed into the country it's a fact that the other type of admission that the ninth circuit talks about is  is something that was created by the immigration reform and control act for that amnesty statutes and regulations and they call this a definition a regulatory definition of admission unknown elsewhere in immigration law  and the ninth circuit goes on to say we limit the effect of our holding and our discussion of rescission and term nation of status to those admissions arising under the provisions for adjustment of lawful temporary residence status authorized by eight u s c twelve fifty five a and implemented in eighty four to forty five point two so the ninth circuit knew that that this that this case would come up and they said look what we're talking about this this regulation which which the limits  facts don't expire statuses expire but facts don't expire and so in this case that regulation can't have the effect of undoing or notifying that admission on march first one thousand nine hundred three without your honors i will reserve the rest of my please the court jennifer corey on behalf of attorney general lynch i'm going to take on the regulatory aspect of this case first because i believe that it's dispositive as to the whole case so whether the so the one  case is whether the agency reasonably interpreted eight c f r two forty five eight to you for to automatically revert gomez to his prior lawful unadmitted status upon terminations of gomez's temporary residence status in  constitutes an admission of at this present admission i the government does not believe it makes any difference here because the text of the statute of the regulation itself the plain language says that terminations of the status of any alien previously adjusted to a lawful temp  lawful temporary residence under section two forty five eight of the act shall act to return such alien to the unlawful status held prior to the adjustment and render him or her amenable to exclusion or deportation proceedings as a ninth circuit found according to the regulation he returned to the unlawful status held prior to the adjustment again he returned to his status as a alien present without admission or p this also so far is as what the ninth how the ninth circuit treated adjustment as an admission they treated it and they do in their in their unlikely mira's and in their case law lasting immigration benefit so two point five eight to these states and an alien his status is adjusted to that of a temporary lawful temporary residence resident is not entitled to any benefit or consideration accorded under the act aliens lawfully admitted for permanent residence accordingly to extend the mission to be construed as a lasting immigration benefit conferred upon lawful permanent residence that similar treatment of temporary residence is for close under the government governing record regulation  and as of course point out that wasn't meant to distinguish between people who and trades are cheap aliens more favorably who left the united states or in their temporary residency than those who not equivalent to the status concern and sign it's a right in that case the evening of the court the specific reasoning was that done lawfulness of the entry doesn't constitute doesn't affect the fact to all admission question correct so we disaggregate status from admission and the difficulty with the government's argument here is is the use in your brief of words like expunge and rescind the factual truth of an entry right but if it's it's only limited to this to forty five but i would make sense and i mean and understand these regs or both or you can clarify but it that it seems like the regs and the laws been written precisely the way you suggested for the parole and advanced parole concept you get to go on advance parole travel but the law is very clear that will not qualify as admission but there is no parallel language for this temporary resident trouble you're right there isn't that looks distressing to me to suggest that we should read into what the law explicitly says in another parallel context well i mean i this regulation was written for a reason this way and that the only way that this makes sense is if admission if any admission was is is no five once a temporary status is terminated hearings it didn't look like the government crossed mr gomes much to suggest he didn't enter that airport and it would seem highly illogical that he would not have lawfully entered because you agree the temporary status it perfectly acceptable from dead well yes but there's a lot of holes in this can i can i go absolutely big there's a lot of holes in this record first of all the one the first one that pops out is that we don't actually know when he entered so  we don't actually know when he entered initially he testified in the ninety three or the media eighty three that's all right well it does is in a way so if you entered eighty three he actually would not have been eligible for the temporary residence no no i'm just at because petitioner suggests that the government hasn't actually given any alternative alternative theories as to how he could have gotten to houston but then not been admitted to the extent that he argues that in his reply brief i just want to respond to that first of all i mean it's not our burden of proof to present alternative theories but should he have been given temporary residence status iranian slate let's say because he was he was inconsistent as to when he actually entered the united states maybe he didn't want to be admitted on the way back didn't want to present himself inspection and have inspection on the way back but you didn't cross him from it's also equally as impossible implausible that his his passport wouldn't have been stamped in houston well we don't have anything in the record on him in one thousand nine hundred three what government retention record retention i actually looked into that and there is no they they don't have any record of it they wouldn't have any record i mean it's not that it's not there it's so great by the fact that he does not have his i ninety four he testified at one point to sink to saying that he lost it at one point saying that he doesn't have it anymore and yet he retained his boarding passes or the boarding pass and he's baggage certificates it all of it it doesn't add up to him meeting his burden of proof it is not the government plausible for a man who had no reason to somehow get around the inspection would would do that i mean want to have it plausible it's his but we don't know that he had country for more than thirty days and then therefore couldn't have been had would have needed advance parole to come back in the stands on his salvadorian passport one of them doesn't even have a year we do see the march first one thousand nine hundred three on there but the other one has no year on there again there's no stamp on this side of things no i ninety four and yet he's kept apparently every other piece of paper that was given to him on that day and so my government just asked you're posing counsel this but but is does the government have discretion to not allow someone on temporary residence status to travel and travel back is that a courtesy that's extended that if if the court were to interpret this law that that entry doesn't say data first century doesn't say the date of last interview so the fact that he puts nine hundred eighty three that's a correct way of filling out the form now of the b i and that wasn't really an issue for the  was the government wasn't hammering your client on this point the idea was that they were really saw something better get to something better and the confusion was the preacher mission letter comes in legally confusion was was substantially prejudiced there by an order removal entered and to be a abuses discretion and finding that there wasn't substantial prejudice when it's clear that there was  court of entry entry into the united states but that's not an admission so congress knows how to limit emissions they don't ones who are doing that or readmission isn't and in addition there's i still just have difficulty thinking the entire class of temporary status people who don't go see their father will never be able to adjust but by virtue of him being able to go back and then come in and it triggers the adjustment it just seems like in in congress you're saying that was written