good morning may have please the court laurie schaumberg on behalf of the plaintiff appellant i'd like to reserve two minutes for rebuttal in this case all right in this case the district court dismissed mr ross fox action for lack of jurisdiction because it found that his alleged failure to respond to an informational request concerning his criminal history caused the department of homeland security to deny an adjustment of status application for him as a matter of discretion and deprived of jurisdiction to review agency's denial of his application there are several faulty findings that underlie the district court's reasoning here st uncontested allegations in mr complaint which the district court was required to take as true and he didn't answer the question he just continued its argument about the status of his conviction not what he was asked well he was asked for a description an explanation of the circumstances surrounding his arresting and the correction and i looked at the documents and i didn't see that well your honor we did provide through counsel copies of the certified minute order underlying his criminal conviction as well as a record of post conviction proceedings he did argue that the conviction which was a disturbing the peace conviction did not justify the denial of his adjust that seemed to be what is response was a sort of like ok i'm going to tell you again what i told you before i don't think as a matter of law that this qualifies so the question really is with respect to  immigration is why wouldn't it be permitted to say well you didn't you didn't respond to what we asked for therefore within our discretion we're going to deny this the problem you honor is that the underlying agency notice of intention and i was not very specific about what in fact they were asking for i mean they were asking for and they repeated the charges that he was charged with the originally the charge that he was convicted of and then asked for an explanation and description of the circumstances surrounding his arrest and conviction and the notice of intent to deny did not provide any further clarification but that's pretty clear what they mean they say we would like an explanation and a description of the circumstances surrounding your arresting conviction well for instance your honor and other cases that i've handled when  educators are interested in the facts you know that lead to somebody being arrested and convicted of a crime they'll ask for a recitation of those facts or documentation that could establish those bad what's a well what's an exit what you know he got arrested he got well he did explain how those criminal charges were just supposed to have the additional complication they already knew that the additional complication here your honor is that mr ross fucked in those criminal charges and fought  m for almost a year and that ultimately led to a very different charge then the charges that were originally imposed against him and you know it's it was very difficult for him to provide an explanation of charges that he explicitly denied me and notice how the facts surrounding his denial well your honor it wasn't clear that that is what the agency was asking but that's basically your best argument is that you think the request was unclear and therefore his response was sufficient and they should have dismissed on background well your honor there was a response file but beyond that the agency's decision was not just limited to in this case was not just limited to his failure to respond to an informational request after the and see indicated that the response was insufficient since he did discuss the positive factors in mr case and then went on to say that those positive factors are outweighed by the poor unquote seriousness and nature of the criminal charges against him mr i was only convicted of one charge the disturbing the peace charge that reference to charges and the seriousness and nature of the charges against them suggests that the agency rely on the original criminal charges against him which he was not convicted of to deny his case whether the agency departed from its own president and handled on corroborated evidence of unconvicted criminal conduct when he did not when the agency denied his case is an issue of law that the district court could have reviewed and the district court by failing to review that issue talking about the agency your honor or the district court either one you want to ok well the agency requested information concerning the circumstances surrounding his arrest and conviction  circumstances of mr prior criminal history instead of just rely upon the language of the denial decision a decision that was outside the pleadings to determine that it was just the failure to respond to an informational request about criminal history that motivated us yes to deny the whole case and that because that was the reason that u s cia asked in ny the case that was something that required the unreviewable discretionary judgment of agency personnel that the court could not review so the court just recorded self did not make a separate informational request it relied on the language of the denial to determine the scope of histories diction now if there was a question as to whether the response to the notice of intent didn't to deny  to resolve any outstanding questions about whether it could exercise jurisdiction over mr ashcroft's case but that was not granted or ordered and the government actually did not request it in this particular case the other issue here is that the determination by the district board that a decision to refuse an adjustment of status student to an alleged failure to respond to this informational request about his criminal history was in fact  in his brief he answered that question for you he said he cited cases from the nd circuit where there was a review now you want to tell us why those cases are wrong while we want to  iscretionary relief from removal from some of the st order questions about how evidence is handled during the adjudication process or whether someone satisfies certain eligibility criteria here because the denial relies not just upon an alleged failure to respond to an informational request concerning criminal history about on the quote unquote meter and seriousness of criminal charges you know not just the charge that he was convicted of and the board of immigration appeals and again rodriguez has said that reliance upon that on convicted conduct without corroboration and if you know the non citizen a question does not admit to that criminal conduct is that is reversible  the plaintiff in this case was granted asylum and adjustment and applied for adjustment of status and us c i s deny the application as a discretionary matter because he did not provide as requested in the notice of intent to deny your noid documents concerning his arrest point of claims that he cannot be denied adjustment based on uncorroborated arrest report but that is not what us c i s did it was not a merits denial on the pond tend of the report it was a discretionary denial because he refused to respond plaintiff basically declined to respond to the noise because as he claims the arrest was not disqualifying but u s c s wanted to know what he actually did to inform the exercise the agenc exercise of discretion it was fair to ask what he did not just what he was ultimately convicted of and in the immigration and nationality act congress has placed such discretionary decisions such as the discretionary decision to deny adjustment application based on a failure to respond beyond traditional review congress left in a safety valve for constitutional questions questions of law but plaintiff identifies neither here and neither one that is a colorable ground rather more specifically is whether usa or c i s can deny testament on the basis that it thinks it's requests for information has gone unheeded it is not whether the discretion was exercised in a particular fashion or whether application excuse me just a court noted that the u s c i s decision clearly states that the application was denied due to the failure to respond to the requests for information and in the complaint paragraph ninety four among others plaintiff admits that that was the at least stated basis for the agency's denial and i have not seen any case law suggesting that that is a question of law but even still if the court were to look into the u s c i says exercise of discretion which we believe it cannot that the record shows that there was not any question of law or that the exercise was somehow improper or reversible the district court found from the record that while plaintiff did submit a response to the noid the response not contain any information surrounding the arrest there was information about the conviction in what charges were ultimately on that judgment conviction but there is nothing about the arrest itself so he never ledges that he provided that background  the other point i would make here too is that the court again we do not think the court needs to reach the nose of intent to deny in the notice of intent to deny response but that it fairly can review the documents requested last week because it's incorporated by reference by the complaint and under federal civil procedure ten that should be something that is before this court in its consideration the next point i'd like to make is that although the district court did but the effect of both of those clause brings us to the same place which is that discretionary decisions including the one here for asylum denying those adjustment applications as a matter of discretion  s beyond judicial review and finally because that decision was an independent reason for denying the adjustment application separate from the terrorism related  grounds that is enough for this court to just look soley at the discretionary ground and our firm the judgment the district court on that ground without having to also look at the terrorism issues alleged failure to respond to the notice of intent to deny with information about mr off much prior criminal history the language of that decision refutes the government's argument in that  it mentions the original criminal charges against him on the charges that he was convicted of and even after saying that mr ashcroft failed to respond to an informational request about his case went on to review the positive equities charges again suggests that they're looking at you know on convicted criminal conduct and that it's not just the response to the informational request alone or lack thereof that prompted the decision of federal regulation exercise of discretion that is what the agency was asking for unfortunately that is not the language that the notice of intent to deny used in this case and you know further obscuring the meaning what the agency was asking for this was a three sentence request well then a three page notice of intent to deny that was focused largely on trig and missed ability and the agency had already determined that mr admissibility for providing material support to a non designated to or three terrorist organization and that he did not qualify for a discretionary waiver of that ground of inadmissibility so  their request about his prior criminal history was arguably immaterial to the decision and home but there was no other opportunity to clarify what exactly the agency was asking for  know i have i had no opportunity to call the adjudicator or contact them in any way to clarify what they were asking for and to appropriately respond had i had that opportunity to do so of course we would have availed of that or any other case just argued ashfaq versus bar is submitted thank both counsel for the argument this morning