good morning everyone and welcome judge wallace and i are very pleased to be sitting today with judge last nick who is a visiting from the western district of washington sitting by designation we love sitting with him and really appreciate his help and willingness to do you very much to treatment and we know we have a high school students here today so welcome to all of you we're really pleased you're here at the end of all the arguments we will conference about the cases and then come back out and talk to the high school and each side will have fifteen minutes law we were proceeding under and that was the one hundred and eighty six dollars c four b that is a section that simply says the alien has to prove that the marriage was terminated and it was entered in good faith we were most assuredly not proceeding under a which is a hardship waiver the proceed the waiver was filed by the fire attorney administratively so that was the only way for the i j a was statutorily empowered to address obviously we were proceeding on the hardship waiver it would in all about a western secular iranian being sent to the theocratic nightmare of iran we would have been argued that we didn't so our position is that the i g acted in excess of authority when she made the finding which is all the statu requires is that the marriage was in fact in good faith we argued the statute is silent as to any good moral character or criminal preclusion grounds congress wanted to do that they would have done it the statute is silent the regulations are silent all they deal with is the adjudication of the good faith of the marriage the word discretion which occurs in statute is discretion to determine the good faith nature of the marriage the word discretion does not always mean a free floating determination of the desirability of the alien for instance on page eleven my brief i talk about the cancellation of removal statue or use the word discretion in determining the hardship to citizen parents or children so obviously discretion doesn't always mean determining if this person is desirable as an alien the other thing to look at is the general architecture of the statute not every alien has to do is only a carefully circumscribed class of aliens have to remove the conditions and that's for people who file their continues the previous scans granted residency once you become a permanent resident after the conditions are lifted you know your period of residency relates back to the conditional person's order before their citizenship so it's not really a new application i really feel with our decision in saying it's completely in a positive because that was the that was under a that was where the person they were not married i mean they were not the marriage wasn't terminated so they were operating under the hardship waiver not ours just discussion and one but not the other well because i mean i think when it's hard ship clearly again even to relate back to the cancellation statute hardship connotes some discretion i mean what is hardship great hardship minimal hardship you know i mean saying simply occurred in a different section section of the law so it's not really dispositive not even relevant in my mind secondly the other case that the government  and the b a is the herrera case to be a case that's not really relevant at all because that only stands for the position that the alien when he's before the judge can submit new evidence in terms of the benefits of the marriage not  it's really not relevant to our case which is that is the context of herrera but i understood the argue the government's argument to be that the reasoning of herrera showed that there was really a complete review which would include discussion but i  because you know you have to look at the not just the facts of that but you know i was under the you know the germination and good faith marriage and all it said was the alien can bring in you know relevant evidence to the authenticity of the marriage had nothing to do had authority because it seems that this has been transferred away from the attorney general in the i james or under the attorney general so does this i j even have authority at all i certainly hope so right i understand that because if they don't then you have no  all they are doing is reviewing the decision below so it's a type of appellate jurisdiction and repeal by implication i think is always disfavored so that would be my argument so why the other ones like ation i mean it was moved to a different agency that doesn't to have to look at the rest of the statute that does give the i j a review so i mean i just think it's by implication i mean i can't say more than that because it is really just what implications like i mean i do think they would have to be greater textual support to say ok you you know you get one bite at the apple and ministry of lee and that's it i do think there needs to be stronger textual support so i think that's you know i think it's fairly narrow and you know there's no prejudice to the government i mean what they should have done in this case is once to immigration judge granted the case finding bond if it is a marriage and then it was this crime that should issue drudging documents and put them in proceedings that's exactly what  good morning i'm a have pleased the court my name is greg and i represent the united states attorney general we disagree with mister understanding of why he is removable so he is charged with remove ability and eighty six sub paragraph c one says that a person with conditional residence must file a joint petition with a us citizen spouse on the nd anniversary of the granting of the conditional residence sup herrick craftsy to a ouy says that if the non citizen does not file this joint petition then the conditional residence is terminated think this court has resolved the issue in saying the holder in other cases that that is ultimately discretionary it's a two step process st we look at does he meet one of the eligibility conditions for a hardship waiver and here that would be able to find marriage and then it step two there is a nd order discretionary determination where we balance one is positive equities and one's negative equities now mr sprawls may reference to sub paragraph of b that is a different scenario that is terminations by the secretary and says here before the nd anniversary of the aliens obtaining conditional permanent residen so that is a situation where you have a u s citizen and a non citizen and they are a married couple and the d h s s is terminating the conditional residence saying that it is a sham marriage it relationship that's not what's happened here ms hall will not file a joint petition with mr hashemi and because she believes that he was using her just to get a green card so now we proceed to sub paragraph and that is the problem that he has he cannot file the joint petition that and that alone makes him removable so his his i mean he's saying here today that he's not seeking a hardship waiver sub c four so i'm i'm not quite sure where our argument should go the court i know has issued questions about c four i'm happy to discuss those in our offices thinking about that so does your office amendments from congress congress didn't intend to change the way that these hardship waivers are reviewed so that two thousand and eleven amendments if we look at this the face of the public law and its legislative history the purpose of that was to provide some relief for our military service members who are serving abroad and the unique challenges that they would face with the two year joint petitioning and interviewing requirements so the used to be handled by the former ins and now it's been transferred over to th us so congress just said in general terms go to the statute and everywhere it says secretary of homeland security says attorney general change that to secretary of homeland security and i'll point out it did a lot of good the statute reads much better now it now makes it clear you file your joint petition with v h s d h s s is going to conduct the interview d h s s will make determination decision if it only becomes awkward when we get to see for where it says d h s s may grant the hardship waiver but i think that if we read this language in context the tw men there's nothing in here that says the car indicates that congress ever intended to change the way it's reviewed and so i think i need to raise that it doesn't seem like congress meant to do this but i wonder if they did it by mistake because we would say that we would say that it should yes and if if you look at it as we argued in our brief two provisions we dropped the court's attention to sub paragraph see three d we recognize that refers to a joint petition as being filed and d h says that the information in that joint petition is not truthful and it says there shall be review twenty nine title eight congress set forth an explanation for how removal proceedings work and generally when someone shows up in court they can file applications for relief they have a statutory right to present evidence it's the immigration judge who will decide their movability based upon the evidence so again that also supports the reasoning that immigration judges you know still retain the same powers that they had before and then one final point that i'll make you don't think this is an issue we need to address absolutely not because if i'm wrong and immigration judges are not supposed to be reviewing these hardship waivers then the the only thing that's happened here is that mr got some extra judicial review he was never supposed to have in the st instance and i i i would think the court would be much better served to allow that issue to develop before the agency rather than to try to resolve that on its own so if there are no further questions i will i will simply conclude by saying again that he he used his status was terminated because he did not and cannot file a joint petition and so therefore because that issue really is not in dispute the court should deny the petition for review thank you really raise some due process questions in the fact that you know the agency denies something when you're put in proceedings you have no choice in the matter and then the i j a you have to file something else i mean that's very rare in our immigration jurisprudence where you don't get a review before the i mean it's seems that if congress is going to do that that would have to be more explicit because that would be rather anomalous i was denied you know the service to say they made a ridiculous finding you know and you can't bring it up before the i g you're hamstrung you have to do something else if congress wanted to do that and i think that we need something a little more explicit than just the changing of the name and finally i don't think the government properly addressed argument that you know the statute is clear that silent as to good moral character or desirability there has to be a reason if you look at their regulations it's silent as to good moral character desirability there's only two things that have to be found under the section that the marriage is terminated and that there is a finding of the authenticity of the marriage at which point again no great new relief is granted the person just continues as a resident now a permanent resident so i think again the immigration judge was correct to grant the waiver and confer permanent residency many months later the government made a motion to reopen and she should have denied that and you know giving the government leave to file criminal charges if they wanted to this was acting in excess of a statutory and regulatory authority and and some of the matter