anyway one concern of the panel is that we maintain our schedule to please watch the lighting system that we use them in red light comes on that is the end of your argument so do finish your sentence where i grew up the communities revolve around the post office the public schools yes or at least parents you know this give us your present ti to to to adjust to status to lawful permanent resident and he was denied that opportunity to do so he had been deported in one thousand nine hundred ninety three issue you claim he came back illegally by passing through one of these ports of entry and waving at someone and my question is in a way why are we even here why is he why is he back yet again after all of these illegal re entries you're not challenging the one nine hundred ninety three order as i understand just a few years ago address this very issue of what is the definition of a lawful entry up now what's the definition of an admission mission there's and that's correct and that the definition is congress has given the it deals with the language of bet if you want to come back you've got to write a letter to the attorney general you got to write a letter to the consulate and if you don't you can be prosecuted under thirteen twenty six my position is your honor is that this is not a thirteen twenty six case client was never prosecuted under thirteen twenty six and no judge and no judicial body has determined that he elite he illegally reentered the united states and under the supreme court precedent at all he was ordered to be removed and ninety ninety three and he in rubio we were dealing with the question of admitted in any status and the debate there that even led to an ongoing vote that was overruled but yielded a dissent was does any status encompass illegal status or is undocumented status but that isn't our question here i actually was interested they all didn't cite rubio so i went back and looked at it because of course i remembered rubio and i thought this really has nothing to do with it though except that it involves a way for through but the way through there was admitted i we're sending a lot of sort of signals that you need stay behind the microphone so it'll pick up the i'm not trying to throw you off and reading from the materials but to stay by the microphone a pick up your statement but my point is is that the immigration judge did not give him suspension of deportation because he couldn't prove he'd been here the required number of years in order to get suspension of deportation but the immigration judge never evaluated he never had an opportunity ever has he had an opportunity to do it through whether he had an opportunity and  whether he could make an argument didn't make the argument or did make the argument whatever to me once you're in front of a judge you've got the opportunity i've had all kinds of people here in front of me saying all kinds of stuff once or in front of me as a trial judge so i don't understand why i didn't have the opportunity i think it was that he didn't know what his remedies were but that isn't something you can raise some twenty five plus years later is it is it is and here's why here's the approval of  know at paid sick says it is not clear from the record when petitioner married his current wife or when she became a united states citizen as he alleges that she is is there anything in the record about followed and i'm not sure what exactly the deadlines were in one thousand nine hundred three but they were twenty five years i know that so i'm a bit struggling with why you immigration judge no longer had authority to do that our position my client should have had an opportunity in two thousand and twelve when they tried to reinstate the order ok he should have had the opportunity in two thousand and twelve to present the approved one thirty in the adjustment status to the immigration  that's what he was denied the opportunity to do and he should have been given that opportunity because our ira should not be is not interpreted as being retroactive when you have pending relief i'm not unlike all the other people that are that are in the case that in the delay he was removed in july twenty seven came while what has been the reason for the law on this getting dark what's what's take a slug about it did you file the appeal what was the day the supreme court's case in fernandez vargas explicitly set forth that i was retroactive for that particular individual because he didn't have any pending relief applications he stayed in the united states and didn't do anything that's not true for my client when he when he returned ok they went through the process they went through the process and and when and when he returned you claim legally the government says illegally that's correct all right but i mean but he he so at least you can see the supreme court case is not a hard and fast rule you look at the particular facts that's correct right you look at the facts the but there was procedural regular when you when you when you when you came into the united states he didn't sneak across the river he accept his statement that he was waved through that is not a lawful admission and revere doesn't say it is it says it's admitted in any status which is a different term that morning your honor smith please the court i'm carmel more than on behalf of the respondent united states attorney general the government asks that you deny the petition for review my understanding was that there were two issues in this case a third issue petitioners counsel seems to raise today is a problem with a one nine hundred ninety three deportation order that certainly wasn't briefed and i don't think that's timely or properly before this court  there can't be because at the time of his reinstatement order in two thousand and twelve the adjustment application that was filed in one thousand nine hundred five which is the only one that would work under his argument  already been decided and denied in two thousand and one that was about a decade at least a decade before the reinstatement stat i mean the reinstatement actually occurred that nine hundred ninety five adjustment application was denied because the petitioner didn't show up for the scheduled interview so the reason for the denial of his application had nothing to do whatsoever with reinstatement bar that didn't come into effect until much later it's simply untrue that that particular application was pending at the time that his removal order was reinstated it would have been a better argument had it's two been pending the court hasn't decided that issues pacifically in a case where a visa would have been immediately available but the court did look at a case and silvo rosso where the petitioner like this petitioner had filed an adjustment application in this window of time before the reinstatement statute that came affective in one nine hundred ninety seven  so rosa the visa didn't become available until after nine hundred ninety seven and so the court said there wasn't a retroactivity problem there and here there's not a retroactivity problem because that particular just monopolization was decided he wasn't denied an opportunity to have that considered the agency considered it and denied it because he didn't show up for the interview so it was denied as a matter of law for failure to prosecute as to the illegal entry question if it sounds familiar judge chains i believe was on the panel and anderson that established a rule that if there's no evidence that the attorney general consented for the alien to be applied for admission th assume that didn't look at the reinstatement statute and that has no mention of admitted in any status it uses the term entity rather than admission are several decisions that we cited one very recently i submitted to the court about a week ago a seven circuit decision in mendoza there's also a tenth circuit decision in cordova soto and a couple of ninth circuit decisions as well and they all determined that a wave through entry or some mistaken entry doesn't count as a lawful entry for purposes of the reinstatement statute it would be really ironic if somebody could be prosecuted for criminal illegally entry and yet not have prior deportation order whereas the dissent from denial of rehearing on bonk thought it meant any lawful status that was the debate which really i don't think has to do with this and that's what i thought originally all been cited but i guess the temptations too strong when i'm on the panel decide everything about immigration i've ever written so pretty well i apologize if i overlooked something but but based on what you've said i don't think it applies in this case now you're specifically looking at the context of a reinstatement of removal in that particular statute and any status is not language that stu's there i'm happy to entertain further questions but i don't think either of the petitioners arguments work in this case  there's simply no retroactivity issue and his way through entry even if we take that is credible just simply cannot establish a legal entry for purposes of reinstatement of removal  private move order on august twenty fifth two thousand and twelve because prior to our ira my client had applied for i had applied to for adjustment of status and adjustment stands now i want to address the issue the court had of why didn't show up the record on appeal indicates that the notice was perhaps mailed to appeal box ok and that campoli had a duty to notify them of his good address but there sever any anyone ordered to appear before an immigration judge he was ordered to appear before and if you lose with the us c i s you are still allowed to go to to present your case to an immigration judge if you are in perceive things intice in in when they reinstated the deportation order he was in proceedings and he was didn't have an opportunity to present the i want thirty and the athlete the five to that immigration judge because they just simply reinstated the removal order and he was removed the only thing that went before the immigration judge was his will was his claim of being hearing that complained about everything then the lawyer didn't show up for a second hearing were you the lawyer i was the lawyer but that wasn't the way it worked was not showing it for here your honor the way it works with this particular immigration judge we judge it i s when he is simply where he is on the record says that the lawyer you one of the hearings didn't show up but you were interested in what happened or so i don't i don't want to get into this but it's if it wasn't presented at the reinstatement that we've got a failure here to present a client your honor that's not accurate let me tell you why the only thing that's before the judge on a reinstatement deals with the asylum issue there's no other issues involved because this only thing that i or our allow just didn't have an opportunity if you review the transcript it's very clear it's what the judge says the only thing before me is the assad case you don't meet the requirements a marine stated deportation and it would make record sar and maybe it