morning your honour's anthony dominguez in addition to co counsel stephen allen on behalf of petitioners it please the court eight c f r three hundred and sixteen dollars b sets the standard overview and naturalization proceedings to determine whether or not an alien was lawfully admitted for permanent residence this standard states that an adjustment adjustment was a person was lawfully admitted for permanent residence when they were just meant was quote in accordance with the immigration laws at that time this standard in combination with this court's standard of review and framework articulated in savory verse u s attorney general states that both agencies and courts may review de novo in naturalization proceedings whether an applicant's adjustment was quote in accordance with the immigration laws in effect at that time however let me start with a with a basic question that's not this case ok so it's a different hypothetical it's someone status gets adjusted to legal permanent resident by pure clerical mistake correct or clerical mistake the person was never eligible you know let's say that they hadn't been in the country for the requisite amount of time gray filed three days after they arrived correct your honor and it was just granted by mistake  is that determination that that person could have gotten adjustment show that it was done in accordance with the immigration law at the time no your honor ok that is the classic example of the savory case from the th circuit in which the petitioner in that case was adjusted erroneous lee with a controlled substance cocaine conviction something that was clearly and unambiguous prohibited under the law at this time this further these this type of mistake cases versus fraud in the adjustment case is outlining that framework that was defined in savory adopted the b i a standard for what is lawfully admitted for permanent residence for matter of multiple circuit courts have since adopted the same framework including savory and from the nd circuit the a role for de la rosa verse u s department of homeland security therefore your honor based on the plain language of this regulation which states someone is lawfully admitted for permanent residence when they are just did quote in accordance with the immigration laws in effect at that time does not allow any determination as to the lawful ness of the law of immigration law in th cuban adjustment act that was in place at the time that hearst that is was adjusted what were the requirements for adjustment under that act at that time correct or out of the standard requirements for adjustment is that cuban must be present for a year in the united states he met that correct she must have been paroled or otherwise admitted in the united states ok we'll get back to that one in the section which she was paroled she made she met that she met that requirement and one of the last requirements is that you were at miscible to the united states ok that's the one that i want to talk to you about because initially the immigration judge found her to be exclud was never set aside or changed right correct your honor and if i may under that time under that framework pre ninety seven pre your ear ira a cuban could receive an exclusion order and they were still eligible for adjustment of status so  notwithstanding the exclusion order legacy ins is still has the kit and that's the same today and arriving alien cuban who receives a deportation order can still go before the administrative us c i s the new legacy ins and still adjust status to today so nothing of the immigration judge ordering her excluded prevented her from being adjusted status furthermore the neither d h s s in those removal proceedings nor the immigration judge ordered her excluded her or her excluded under the fraud provision those are two key differences based on the cases of curt and your mary which the government site says authority that this has been fraud all along even when they was clearly not considered fraud and the policy existed at the court found that there was a policy to admit cuban nationals and similarly situated as petitioner and they did not consider that act of the program when they came in as cubans and were paroled as cubans there after legacy ins did not consider that that to be fraud the district court held that this policy existed as a matter of fact the government did not to attend that this policy they decide on the basis that that there was no fraud when she presented herself to the the us officials because she was presenting herself as a as a cuban that's her cuban passport that's correct your honor now in addition to the fact the district court found the list of fraud prior to that that's correct however with getting the ticket the and participate in the in the in the program yes and while that under the framework is a court or an agency may very well determine that situation to be fraud now for instance in this court upheld under the substantial evidence test a factual pining that someone in that situation t v was in fact inadmissible for fraud however under the immigration laws in effect at that time we know as a matter of fact legacy ins did not consider these actions to be fraud well that then brings up a point of general administrative law correct your honor what is that sort of  facto policy mean when a court is doing dyno review as you initially said yes you're on a naturalization petition and in response to your question i'd like to do any again the din over of you is on the naturalization application however there are review as to whether she was lawfully admitted for permanent residence it's not a readjustment in today's law it's whether she was lawfully adjusted under the in if under the laws in effect at that time  flip the facts and show you why i have at least a partial concern with what you're saying assume that the ins is policy were completely different and that instead of granting adjustment of status to three hundred and sixty one dollars out of three hundred and seventy dollars cuban nationals at the time they were denying it because they believe that this sort of conduct constituted fraud for another benefit co a court on dyno review of a naturalization petition disagree with the ins former ins and say that's not fraud and we're not bound by the defacto policy of the former immigration service years ago your honor if they were denied residency based on fraud i don't think that hypothetical situation whatever that review would never be able to take place because wonder you could because you could you could conduct fit the fit the statute at that time but there would be if she was denied residency for that reason there would be no review retrospectively as to the naturalization as to that policy your honour's its position is contention that she should be naturalized for two reasons number one at the time of her adjustment and ten years thereafter legacy ins had a policy to adjust but cuban applicants for adjustment of status similarly situated petitioner as i said the district court found this to be a policy as a matter of fact the government never contested this within twenty eight dollars days under federal rule of civil procedure fifty two dollars b to that extent accordingly the government has waived in forfeited any objection as to the existence of a policy at this time furthermore it was in accordance that's the point the doesn't this all come down to whether or not as a matter of law getting into and using the travel without visa program initially with a false passport constitutes fraudulent conduct even though when you arrive in the united states you disclose who you are respectfully of oh no your honor because the standard of review because what it means to be have been lawfully admitted for permanent residence it means having been adjusted in accordance with the immigration laws at that time you're saying that the policy was therefore unlawful in the past you can't review the lawfulness of the law under which they were just did that the review allowed for whether they were adjusted in accordance with the laws in effect and if the law allowed for that adjustment past we should have what if the what if what if the government was wrong but it was an intentional your honor and the standard of review what it was an intentional purposeful adjustment the standard of then what does that mean a standard of its did no will what would what is the government's intent matter because the standard stablished by this court in savory versus united states attorney general states that the framework for determining whether someone was lawfully admitted for permanent residence means it can mean it's either they committed fraud if they were which we know this was not fraud in the adjustment context number two or they were not admitted for permanent residence if they were admitted by mistake this is the mistake example the that statutory framework defined in the plain language is eight c a far three thousand three hundred and sixteen point two b in combination with that framework of savory leaves room for one logical conclusion if it was not fraud in the adjustment if it was not a mistake which we know contesting these this policy to be a mistake would be a disingenuous mischaracterization of the record decision which defined it to be another benefit black's law dictionary there was the language other benefit was the language however your honor and there's no question but that you got another benefit right and that we would still contend that t v is not another benefit but we don't believe that's a question this court even has to answer in this case specifically they were not why can't think this case be looked at as though she committed fraud but the ins at the time over said we're not going to because because of the cuban policy we're not to pay attention to that we believe that is part of the issue here that all then then that gets back to rather there was really a policy or whether this was just an understanding we're going to go on or there's a policy as if it had been written in a in a regulation and it wasn't for me the problem you're asking for did novo review and now you're telling us to give deference well so how do you square those two things yes you're on if you're supposed to do did over review how do you give deference and that deference is a two way sword because in one case the deference may help an applicant and in one case the deference might hurt an applicant so how do you how do you parse that yes your honor we but again we believe that denote a review is of the natural was an intention the government intended to adjust these people if the courts if new political new agencies or new administrations can go back and say oh never mind that past policy was we don't believe that policy was legal for instance let's say they go back and say everyone it under the reagan adjustments that those embassy problems we believe that policy was legal executive we just write an opinion that policy was illegal therefore anyone adjusted under that policy can't or was unlawfully adjusted for permanent resident status  therefore can never become a citizen because they want an off the admitted that brings up grave retroactivity concerns and problems within the separation of powers that new administrations and new courts will be retroactively deciding past policies whether they were on lawful or lawful when the law at the time was settled in this case the statute we believe the plain language of the statute did not prohibit this action furthermore the existence of the case thought the time matter of d l and am stated the general rule which i am that's officers applied in this case the district court they decided not to apply the exception of should l and that was reasonable as a district court explained in its opinion why should l doesn't apply in this case if the if the cases are determining the meaning doesn't that mean isn't that what the statute always meant as a matter of law if if the court were to that matter that there after correct court deciding a statute on and vigorously means this has retroactive act we would decide that however this court has never decided that this court incur merely up held under the substantial evidence test a factual finding o realty for that fraud to be reprogrammed that would have had been the same situation occur as if the immigration judge in this case had said art you're excluded under fraud and then she appealed that all the way up and that discretion was reviewed under the  evidence test the court has never addressed this there's there's no precedent decision even from this court saying unambiguously this statute is a virus or the policy doesn't doesn't this is fraud under the statu  three hundred and sixty dollars something immigration officers just simply made identical mistakes over a short period of time in adjusting to status of cuban nationals who would engage in the same conduct as your honor we're still of the opinion that mistakes were made many mistakes three hundred and sixty one out of three hundred and seventy nine are i'd like to look at those statistics a little more closely not that i don't want to talk about what they mean i want to talk about the government's position about whether or not those were mistakes or a government policy as judge walker suggested given the views of different administrations towards the whole cuban issue i will tell you this and i'm not saying that this affects the legal analysis but for the government to say in court that it was just a mistake for three hundred and sixty one dollars immigration officers to approve three hundred and seventy dollars applications involving the same conduct strains credulity and i think the district court got it exactly right that it is offensive for the government to say that much better for the government i speak only for myself to own up to what was happening and say listen for these other reasons it doesn't matter ms bueno is wrong she can't get her citizenship for these reasons but you know sometimes statistics say something and this looks like a case where they're screaming something your honor may respond of course we know that you know one hundred and two of these cases waiver applications were submitted we know that's thirty percent of the three hundred and seventy dollars applications that were identified here we know that waiver these are waiver of inadmissibility fraud  know that they were approved in sixty five dollars of those cases we know that there were four hundred and twenty three applications by these three hundred and seventy people that chose if there were fifty three or fi repetitive applications where people must have been denied once and they came back they came back again because on a nd or rd try they were able to find an adjudicator who missed this fraud and that's possible here your honor we're looking at a ten year period we're looking at thirty seven thousand and seventy or i'm sorry four hundred and twenty three applications if you dump the minors that takes us down to about three hundred and forty six applicants we put it this way if there is a policy if we should be looking at all of this come to a different conclusion on that question is that the end of your case or do you have you have an argument that  admitted at the time need not be lawfully admitted later time i mean if there was a pursuant to a policy and there were automatic waivers and people were coming in priscilla to a policy then it really wasn't lawful because there was the you know the other benefit prong that was that was available and it we should've we should've we want to change t change the situation change the policy or change you look at it differently than we did then your honor the government i don't believe can take issue with what the district court found our position is that what she argument that it really wasn't a policy it was an informal understanding and officers were exercising discretion in certain ways that was erroneous it was erroneous your honor and whatever it was it was not law it was never written down relies only on statistics to claim that there was a policy here and cites no authority for the proposition that statistics by themselves can show law there is no reference to precedent no reparative reference just to regulation no reference to memorandum by the each and see sitting out some kind of practice we know we've got to write an opinion one way or another in this case and there isn't much out there in the circuit so i have i have this question for you to try to figure out the limits of your position as well as mr dominguez if if the government had set out maybe not in a regulation but through some sort of an opinion letter or some other formal memorandum that it did not consider conduct like that of miss bueno to be fraud in connection with obtaining another benefit what effect would that have in a case like this one that would have a dramatic friend footnote three or th footnote fifteen of that case actually refers to the memoranda that memorialized each and see decision in that case we have nothing like that here in fact we have a deposition from  who said that there was no policy at the time the record does it simply doesn't support the existence of wall off at the time to which this court or judge williams or u as we know your honor citizenship is it's a great benefit and the supreme court has recognized that it's proper to go back and look at whether or not the individual was substantively lawfully it and so even if an examiner made the mistake of giving someone the considerable benefit of a lawful permanent resident that doesn't mean that they therefore are able to completely set aside and ignore revisiting that question now precludes rescinding her status now that is some protection for her but that's all she can look to she cannot say well government you made a mistake in ninety six and you're bound by that mistake now there's simply no basis to say that she could rely on that mistake and it's quite clear there there's no stop all of political to the government in this situation because there's no evidence of affirmative misconduct and generally the courts have no equitable authority when it comes to to citizenship i think you're exactly right about the a stopping point but is this double different from precludes civil fact or are they one in the same or are they overlapping concepts well i think that the in other words there could be an argument i don't know that would be successful or not that a prior determination although it may not have stopped the government in traditional stoppel terms may have some precludes of effect as against the government with regard to that same person in later proceedings i don't know how that plays out but that's my question to your honor we reject that categorically because this is a new proceeding this is someone who is seeking citizenship and the qualifications the requirements that have to be met in order to attain that are clear and it simply it you cannot simply import an adjudication made in the context of granting lawful permanent residence into a citizenship determination the district court correctly recognize that her review was do novo and she said that u s c i s is due no review needed to be did novo as well and it was and c i s and judge williams both properly focused on the other benefit part of the fraud provision and consistent with precedent is a particularly curt the  unpublished decision of this cordons also is the st circuit decision in your mary found that it mission or access to the transit without visa program is another benefit it's pursuant to another provision of the immigration and national ality act and therefore when ms plano presented a fraudulent passport in a misleading ticket and intended to remain in the united states she gained a benefit fraudulently or through misrepresentation and that clearly required a waiver if she was going to be lawfully substantively lawfully admitted to permanent residence and that didn't happen the lack of a waiver in this case unlike fifty six other situations where people did apply and receive waivers she did not she did not follow that procedure and therefore her law her permanent residence is not substantively lawful they ask you what was at the time what was the standard for if there provision and the cross references to eight us c one thousand one hundred and eighty two has it remained has that provision remain the same or has it changed like other parts of the immigration code well it's always a little  qualifying relative in the qualifying relative is a spouse or your parents who have to be citizens or permanent residents themselves i'm familiar with up with that subsection because we get some appeals with regards to that issue which is generally non reviewable are there any other ways that you could get that waiver now or at the time or was just a hardship provision i believe it's just a hardship provision your hon so as i mentioned i think that the inability to rescind lawful permanent resident status is at this point a palance solace in this unfortunate situation and we would say as well that the fraud were some indication of how the law understood appellants action in this case so for these reasons we believe the judgment of the district court should be affirmed if there are no other questions  ank you and briefly to respond to my colleague specifically into their contentions against the the existence of a policy at the court below again petitioner would reiterate the stance that this was found on a quickly by the district court to exist and this was a matter of fact in the record that the government did not contest at that time and cannot contest the results now when they had a chance to proffer their own calculations regarding the discovery results they entirely ignored to simply stating that this was a mistake as a district court found we know that miss point was not adjusted pursuant to a mistake case this missed when o and the petitioner in this case along with hundreds of other humans were purposefully adjusted under the ins policy that existed at the time you know you would would you have to do what you have to convince us of i think is that an informal application of the law  adjudication in the single instance of specifically the allianz out this case the policy that they developed for that case through an informal adjudication although they write memos was developed just there for in response to the case this court specifically held that deference was still do because there was no statutory provision for any authority of law that directly contradicted that at the time of her adjustment no authority held  that this use of the t v program was another benefit legacy i and that's a good nobody had addressed it well your honor the definition of lawful in black's law dictionary is what is not prohibited it is not what is what is clearly spelled out what you can but i believe that that runs coincides with the principles of our free society here in that what is not prohibited is lawful we don't have to but no one had addressed the question of what was prohibited or what was it was just the open question at the time well the general rule your honor was a matter of which which held the b i a general rule within the agency held that fraud had to be made upon a government agent the very narrow exception to that adjustment was in accordance with the immigration laws at that time it does not now this court to review the lawfulness of the law in effect at that time or otherwise put review the lawfulness of the policy under which the petitioner was adjusted at that all right thank you very much for the thank you thank you both very helpful