i just like to request maybe about five minutes to do good morning my first time in cincinnati what a great city  represent the petitioner daniel committed this is an immigration case he's sixty fifty four year old native and citizen of kenya he's been here for almost thirty years has a wife three children two grandchildren and this case i had i believe you know the case history i don't know if you want me to go into so he's currently in the united states is spent in the united states for thirty almost thirty years and never been removed and just remind me what what is the event that perceptor to these proceedings after all this time ok so no he entered in eighty six as a student and then around nine hundred ninety  he got a job as a delivery boy for two dollars an hour and that was a violation of his student status who was put into removal he was granted voluntary departure and then he filed a motion reopen  on his marriage to a u s citizen who he was married at that time quite a while he had approved visa petition at that time remain married to the u s yes he does and he and i would say they were married in the early ninety's maybe but he has three children and two grandchildren and that's not what this case is about that we're now it's not of this war right so it comes down to the i and nine form which it's really an important issue and i'm glad you know this court is willing to hear it because basically what the government's alleging is a death sentence for him in terms of immigration that he claimed heard the proof right right he has a burden to prove never said anything about why he was claiming to be a national or said anything well i want to bring up two things during the hearing the government never mentioned this as a grounds or in his case he was originally  let me go this immigration hearings the judge has the right to question they're not like a typical court hearing the judge has a right to question the witness cones court so the judge didn't go any further to ask him there is no al great statement anywhere in the record i claim to be a citizen the boxee check he says i'm a citizen or national claiming to be a national is not a violation of the immigration law and ironically him checking that box he would again know it vantage by claiming to be a citizen versus a national what he was looking for is employment ok so been no advantage and that's really important in this case because in other cases there's a lot of other evidence which there is not that much case on this issue but in other cases where the alley and was found to be inadmissible there was a lot of other evidence that they claim to be a citizen in india as for example in this circuit he made out right statements he claim to be a citizen in the eighth circuit as well that they claim to be a citizen the the alien where specifically asked all the other case law is showing that in this case he submitted his own social security card he submitted his own driver's license that's crucial to this  here that we should my my case is that the substantial evidence there is no substantial evidence to show we claim to citizen we have is an an authentic a did i nine form that he that as i said he was never given a chance to he has no he didn't do or say anything but love to to satisfy the burden which is the petitioners burden to show that he didn't misrepresent when he checked the bar so saying is maybe his attorney thought he had established his burden at the time because there was no false documents here he submitted his own documents and those are the same documents that show nationality by the way  and had this client testify of what his intent the only thing that can be shown is his intent is is mental intent there is no other proof that we can provide or decide what's in the record  manual which i believe the v a didn't even want to consider it this is all immigration that it should be considered and i also want to mention that as far as when it's the government's burden of proof clear and convincing evidence checking off that box was not considered clear in convincing evidence of a claim the nationality so the court has to take that in light of what the alien spurt in the proof is as well you're out of but if you like you could denial of adjustment status as was discussed making a false claim to citizenship is an absolute bar to just my status for which there is no waiver of ass if you claim a citizenship not being a national right to be a claimed yes being a citizen correct yes claiming to be a nationals not or not claiming to be a national is not enough and that's why again what's important in this case is the burden case petitioner cites a lot of cases that involve for movability where the burden is on the but what is the case in our circuit if there is one that makes clear that the petitioner would have the burden of showing he's not in eligible under this provision yes i would say the most clear cases the ferentz case that's six twelve third five twenty eight and that's where it definitively burton was allocated the first case what was going on there that was a  again a case where someone was seeking to get into the united states or adjustment of status and it was discussed where you remain here seeking to remain here yes so when i say seeking to get emissions united states that's the legal fiction the idea even if you petitioner made a mention that when i was counsel mentioned that when he was seeking employment through mark in the citizen and national box he was not actually seeking to get a benefit in terms of whether you're trying to seek a purpose or benefit in the variance case also addresses that argument that's a new argument before this court and it was never raised before the agency  job yes the form i nine so where you mark citizen or national united states and see if the national i could get a job and would not have this problem heat that's a good question i a stupid question but what again is it to be a national of the united church so national now understand how somebody would be confused with this form what is it so a national united states a someone who's born in one of the outlying lean territories like american samoa i believe there's only two territories that is or descended from one of those people who were born there so that's how you would have national status not citizens not citizens they'll have full voting rights the ability to serve in office things like that but to be employed yes and again this case arise again i mean this gentleman's been here for twenty something years and here we are in two thousand and fifteen you know after he's been married he's got three kids grandkids and you know in this case in front of us was it did was it his own application for adjustment of status or the like out of the blue or something that started this or what's the what's the context this he moved to reopen and s just status based on so in the ninety's at first i think based on an initial attempt at marriage but there was an evidence to the judge denied that motion he came back later i think two thousand and nine i believe he that twenty years ago was nine hundred ninety one i believe or nine hundred eighty nine when he was initially about twenty five years ordered removed if he would he came out almost student prohibited from working in the first place is is that correct or is that not correct now that's correct and that's actually why he was initially order removed because he was on a student visa he violated the terms of a student visa by getting a job here and has effectively never been able to work in the united states violated he was given voluntary departure in lieu of being removed what was that first order of removal that led to the voluntary departure i believe it was one thousand nine hundred one your honor i go and that's before the zine forms are filled out that yes record yes yes i believe those were filled out the in two thousand and five and two thousand and eight just out of curiosity how has this gentleman been supporting himself all this license and a social security card he says along with those which he says are not fraudulent i'm not clear and it's not clear from the record how you would have a social security card that allowed you to work there was not  that in violation of his immigration status well he actually doesn't have any immigration size in the united states that's the problem he could because he was removed ordered removed he shouldn't he should not be here at all he hasn't had any status since that time well there's no there's no real argument that that if it went back down that he could claim that he sat in that form thinking he was a national if a national somebody who is born in a territory when there  there there's a provision that says you are not eligible if you've done certain things one of them is claiming citizenship but just to be clear i'm not trying to make a point but working here illegally is not one of those things that would make you just per se an eligible zakk correct not that i'm not i'm aware of i don't believe so working here illegally would not because i didn't have not only goes into i mean the person's behavior or whatever probably goes to the more discretionary determination that because he moved to reopen in two thousand and nine or something seeking the latest time yes yes correct i mean what is the removal it's i mean the true physical removal machinery powered up in this case or is the the department just reacting to this man's petition he this person has been under the supervision of the department of homeland security i can't comment on whether they're going to remove them urgently but he has been monitored for many many years really by them ok that's what i mean you know obviously there would presumably be a lot of hardship to his american citizen family but you know that's not here i'm just curious these are human beings i'm sort of curious what's going on exactly and again i want to say that our office and the department of homeland security we consider every case for prosecuting prosecutorial discretion in this case it was obviously because it was sent back to the agency to explore eligibility for adjustment studies again this is something this is a case that we had really looked at in regards to things like that or address quickly the petitioners claim the his right to d the government supposed to give notice of that are heads up before and it is your position that yeah we probably should have done it but it was it was harmless and they didn't object or is it that you did not have an obligation to let them know ahead of time there is in the no it's a ministry of any law that required you to give a heads up no go and again it's they didn't object into its admission and again they don't show prejudice as to what the issue would have been if due process violation would not be just the admitting the i ninety nine said mr bill any possible due process by lation would have been not putting it in the record two weeks earlier and they've never again said how they are prejudiced by that because there's been no arguments again that their national or if you don't have any other questions and then get back to remainder my time again substantial evidence supports agencies of sturm a nation a false claim to citizenship is an absolute bar to us thank you bubble just want to address a couple questions that were raised so working illegally certain types of adjustment is a bar but in this case marriage to a us citizen there is there is an exception so him working illegally would have no effect on his adjustment of status the main issue is him checking that citizen international box in which there is no waiver some some violations or waiver this case there's no waiver for that and just want to reiterate that the evidence in the record there is not substantial evidence to show that he claimed to be a citizen and that well are high in thought but there is nothing on the record that shows either i'm not asking you what's in the record soon you're familiar with your plan and his circumstances i'm asking you as his attorney kenya but yes the ultimate question here i mean the burden really seems to be quite important in this case and the ultimate question let me let me put it this way it isn't the question here whether the department the board had said whether substantial evidence supports the board's determination that your client did not prove he meant national said in substantial i apologize i apologize for the negatives i don't think i understand what you're saying though your client has the burden to show him that national rather than citizen it's a substantial evidence standard of review putting that together means is there's did the department have substantial evidence does upstage eleven it support the board's determination that your client did not prove he meant national well there is what's in the record is it doesn't prove either way i mean i'm not asking the answer i'm trying to frame the question you agree that's the question there is nothing to show that he intended to be a national not a mask it's very important we understand what the right question was is that the right question don't worry about the answer is that the right question whether substantial evidence supports the board's determination that your client did not prove he meant national well i would frame it as substantial evidence show that he is inadmissible as claiming to be a u citizen that puts the burden on the government which i think you said they don't bear well i don't know if that puts a burden on the go i think that's what what what what it's a question in this case is what the substantial evidence is showing and i mentioned before that any it with immigration any ambiguity in the case is always construed in favor of the elite and because of the aqua d's in this case not if they bear the burd