our next case is number sixteen dash one one four zero seven steve orlando mcpherson versus the attorney general mr pack whenever you're ready morning hours and may please to court albert pack for the petitioner mr stephen fierce in this case should be reminded to the board of immigration appeals the board erroneously refused to review the immigration judge's findings that macpherson's simple battery misdemeanor was both a crime involving moral turpitude and a crime of domestic violence before you before you go into that argument is to pack and i ask you a question with regards to your second argument the one you asserted in the brief the government has filed supplemental authority indicating that the petition has now been denied on the merits and they assert that that second issue of motion to continue i'm happy to rest on my briefs the one factual point i'd like to make is that while the first i want thirty application that was at issue one that motion to continue was filed that was denied on technical grounds  first issue if you could though and if that's what she's done i don't think there's going to be any dispute from the government i'd like you to file a twenty a j letter within ten days of today just indicating that she has done that and filing attaching a copy of that petition to the letter i am happy to try to do that your honor i've been trying to get the copy of the third i want thirty application it's hard court date with my client but i will i would do my best to do that within ten days or if you're not able to do so then just let us know but i'd like you to try to the best of your ability to do that yes your honor can you try to give us the date and i assume it was well after the hearing correct your honor it was recent is my understanding within the past few months right so that the new one thirty was filed we know at least twenty eight that is my understanding ok so that would not be before us in any way to affect this issue then it is an continuing i want thirty application your honor but i'd be happy to give you the specific date now as i need some help whether we should just say the continuance issue is minute or because there's a new one that was just filed a few months ago somehow the result is different it seems to me you have to consider this case at this time the motion for a continuance issue based on the pending one thirty but if you have argument otherwise with glad to hear it i'm not prepared to concede that today your honor but in a twenty eight day letter when i do if i can follow the third i went through the application i'd be happy to provide authorities you are also of course permitted to respond to the government's mootness argument in its twenty eight j letter so to the extent you have a position on that issue you can it forth in that letter along with any attachments you're able to locate yes your honor i'm not translate what your position should be and not be i'm just asking what it is because you brought up the third petition i understand your honor and if i could return with that to the first issue which i think is the real issue here the un reviewed findings by the immigration judge that the simple battery misdemeanor constituted both a crime involving moral turpitude and a crime of domestic violence these unreviewed findings render mr macpherson permanently in unmissable to the united states so the board henri mand at a minimum has to apply its expertise in immigration law to endeavor to explain why b s unreviewed findings will not have a material prac i tried to draft a laugh the last paragraph of the opinion because i think you brief make some very good arguments in that regard and we all know it has collateral consequences so would this be satisfactory to you with regard to that particular issue so if you were to say something and i'm just talking hypothetically we haven't come for it i tried to see how this would work where they don't rule on this all the ground and they have denied the petition on some other ground you're sure that  would be to be a must either one reach the merits of that issue or are they cate that order as the two grounds of remove ability leaving in place only the order of removal on the conceded ground that he failed to comply with the conditions of his duties but that be ok if we just vacate that aspect or excuse me leave it to the b i i'm troubled by going back and make in the room on something is not necessary to resolve this case so why couldn't you cite reach the merits of it or if you don't want to reach some merits on it not very helpful because we don't really say thank a bit or decide the merits we just say oh if you think it has some collateral effect do something that doesn't really help well your honor if i could explain why i think the court did that at least in ocean day in and as they say i just want to make it clear i think that would be one way to go the way that your honor suggested but the court in ocean wind and of course judges jordan and hall are on that panel even  published per curium the court cited the supreme court's case in ventura for its explanation of why it was remanded into the board of immigration appeals for further explanation as to why these additional unreviewed grounds of movability will not have a practical legal or material impact the courts i have been true of for that proposition and that he says about allowing judicial review of an administrative decision because currently as it stands there is no sufficient explanation by the board of immigration appeals as to why it did what it did even though as you just noted your honor there are these collateral consequences so the general  don't know whether they are are not but we're not going to get into it certainly the potential collateral consequences i understand and i don't want to i don't mean to overstate what your honor had said but looking at the language there see this is a problem and what we're telling them to do well i think it's because you're on an ocean day there was the same prerequisite question that i think may still be present here which is the board did not explain why i was not addressing these two additional ground i move ability so if there is a good explanation as to that and i don't think that there is but if i then might waiver something that could be one of the things that the board points to applying its expertise in immigration law but so the first question is the board has to explain itself so that this court can review under the appropriate standard ventura says the leeway provided by law i think it's probably an arbitrary capricious standard you can't even do that judicial review right now because of this lack of explanation i think what ocean india was getting to there your honor was to say look if you can't provide that explanation we'll go ahead and review it if you can't provide that explanation and you've got these are reviewed findings go ahead and review them so i think that was the last sentence your honor of ocean and then why was instructing well with three men with instructions that in the event that the board is unable to provide that explanation it has to go ahead and review the two and reviewed findings is that unfair to assume that the board simply knew that this person would be removable for the one reason and so they didn't see the need to review the other two reasons that's not unfair your hon consequences and having a continuing injury to the appellant that does justify jurisdiction and this was squarely at issue in the fifth circuit case i believe versus united states and also the third circuit case my york versus u s attorney general there there the posture was slightly different it was squarely on the question of just disability on the jurisdiction but it was the same principle which is that it is d's collateral consequences to re entry that makes it two things the court just the case just will and the board had to explain why these things were not sufficient to review these additional grounds of provability whose responsibility is it to identify which collateral consequences if any exist from these remaining i g findings while the just understand because i've had it conceivable that there could be collateral consequences but i don't know that anyone has told us what those would be well your honor we've argued that in the brief sure and if you look at section eleven eighty two if you commit a turpitude you are permanently in the sports the united states there are as i think judge hall suggested some workarounds but it is up to the board of immigration appeals to explain why the minor standing is that it is binding is today in the miscible louis issue as well but if it is not that is again precisely the sort of expertise in immigration law that the board has to apply to explain why it is not true that there are no collateral consequences from this because on its face from section eleven eighty two there is a permanent bar to entry on or conceivably the b i a and i think you probably would have been were your client probably would have been a satisfied as possible with this if the b i had said because we're not addressing the crime of moral turpitude issue we're not going to treat it as having binding effect in any future proceedings involving m issue can be litigated in a future point in time if necessary right because that would have left the issue completely open and should mr macpherson ever tried to enter the united states reply for admission that issue could be then litigated without there being precludes to the fact to the i g s order that last part your honor i think it's key and i agree because the prejudice here is that reclusive effect so i don't know what the procedure would be i don't know if the court would have to vacate as judge hall suggested the idea is finding it's to those unreviewed grounds i'm not sure it would be sufficient for the board just to say that it's not binding in the future and that would show up on his mr macpherson's records but i think that would be enough and your honor to be clear on this case i think there's an additional factor here which is that re entry is not just some sort of a hypothetical possibility for mr macpherson his wife his nine year old daughter and his twelve year old stepdaughter are all u s citizens residing in the united states reentry is the only means by which he can live with his family here so again that is an additional factor that this court could consider in a narrow holding that you know when there are an reviewed grounds that the palin has squarely challenge to that or more severe in the sense that they appear prima facia to have severe collateral consequences and it is true here that these reentry rights are important for the you said procedure i said just way because some people are walking out of the courtroom of the questions that were brought up by the court i am not currently aware that a third for my one thirty has been filed by the mr macpherson's wife in this case i do  information that there were other form i want thirty's filed by his sister as recently as june twenty eight thousand i did not mention that my twenty ha because it is the government's position that as those for my when thirty's were filed long after this proceeding has occurred that it would be a completely different issue that doesn't necessarily affect their continuance in this particular case is mercy of you could in the spirit of cooperation they've you could find out whether or not subsequent petition was filed and let mr pac know and if you have a copy of it provide it that will give us the data filing and everything else and they will certainly help us  figuring out the move this issue i will if i will be able to there are some different privacy concerns because the petitions filed by the petitioner spouse not necessarily petitioner so i might not be able to achieve getting a copy i m however the time for appeal was not finished by that point by the time of the filing of respondents briefs so that is the reason that we did not file mootness at that point and then i recently checked into it again and took me a little while to double but the agencies regarding the denial of the form i went thirty you mention possible movements in your brief in that footnote suggesting that the petition had been denied i mentioned the denial of the form i went thirty eight but my apologies i did not mention witness at the time because i had to be honest it seemed premature to be to make that argument that at the time so my apology you know now that there was no appear from that to my knowledge i did check with you regarding the second issue for the court and as counsel said perhaps the most pressing issue before the court the respondents position is that that the board properly determined it was a necessary to reach any other basis for movability in denying mr friends and motion to terminate and where the record reflected that he'd already conceded let me see if i can shift the thinking a little bit and maybe help us address this issue think of a district court and a court of appeals district court rules on a case on one issue provides three alternative grounds court of appeals gets the case says we only need to address one of the grounds the district court got one of them right we don't need to address the other two and were affirming on the one ground end of story in our practice on the federal court side our decision is not binding precedent on the two issues that we chose not to address people can treat the district court's ruling on those issues as persuasive in the future but our decision is not binding on them what makes the b i a i j scenario different the same or somewhere in between for a federal court of appeals and a district court here well your honor this actually has sort of a multi part answer in some ways because i did want to correct something that mr pak said earlier judge grant was asking if the border immigration judge's decision would be binding in the future and it depends on the context would be the best answer for that ferg and that sort of encapsulates the problem in this case and the reliance of the petitioner on that language and assure and day of any material legal impact in the future of relief essentially what happens is that the petitioner can still get lawful permanent resident status but he would have to do it through a different procedure he would have to in this particular case if his i one thirty was accepted sometime in the future he would have to go through a consular process the consular process to be able to get that fisa and while the board an immigration judge's decision in that circumstance might be persuasive it wouldn't actually be binding because the government's position in this is that it's when the adjustment of status application is made that the determination of inadmissibility would be made and in this particular case we never got to that point we never got to the point where he was actually applying for just my status here or the board properly followed its procedures it looked what was directly at issue in the case and what was directly a issue in the case was he had filed a motion to terminate proceedings on the basis of these two ground that were essential to determine his remove built and the second issues which is what the petitioners case is primarily based on the possibility of somehow at some point in the remote future he might be eligible for future relief wasn't at issue what what what an immigration law whether it's a statute or regulation determined at the point of adjustment in the future what provides as an answer to that one way or another well it may be illustrated to look at this case in the fact that he had two grounds of additional remove ability that were at issue there was the c m t of course and there was domestic violence and both of these were considered as issues of remove ability under twelve twenty seven they were considered as an issue in miss ability under eleven eighty two but so issues but decisions about crimes of moral turpitude have impact across varying different immigration statutes right yet they do various things to you in different scenarios that's true but i think if you look at the two statutes and i pointed this out the petitioner did say that it might not be political in this but in mr macpherson's case but looking at this wider in our brief we brought up the fact that a four remove ability there is no petty offense exception for inadmissibility there is no petty offense there is a petty offense exception so the grounds of question of whether or not an reviewed i j finding on a crime of moral turpitude has any preclude effect in future admissibility or re entry proceedings or visa proceedings where would i find that he would refer to the statutes actually most of the statutes say including the just missed status application essentially i'm sorry statue essentially stay like in time of the application for adjustment of status so i but that doesn't answer the question of precludes of the fact sure you have to make a decision at the time he moves for readmission makes perfect sense he applies and the government decides yes or no but in deciding yes or no does the government look at the i j a ruling on a crime of moral turpitude and give that any effect or do they act as if that ruling had never been made and start from scratch well your honor a lot could happen between point i am point b now i'm assuming that there's nothing that happened be that nothing that happened i don't wait he waits whatever number of years it is and he applies for readjustment with an i thirty petition again it could be persuasive but it's done at the time of the application for admission so i'm not saying that they wouldn't look at the immigration judge's decision or the board's decision but it would and it could be persuasive to them but he could submit additional evidence he could do other things that would show that he is and he could possibly not be inadmissible at the time so they say it's your position that that would not be a binding determination that i g s previous determination would not be binding on these future and moves in this ability or seedings in the context of like a circumstance like consular processing is there a circumstance in which they would and which that decision would be binding for example of it came in front of the board again and motion to reopen where it's within the same proceedings within the before the immigration judge or the board i don't want to put you in a bind but i'm going to ask you this question you're comfortable with us writing an opinion that says it is the position of the united states government sentence for me if you're able to should mr macpherson apply for readmission in the future the government will do the following with respect to the i j s n reviewed finding about a crime of moral comfortable with that in a written published opinion as in the good that you know if he was applying through const the review will be if he was applying in front of the board of immigration appeals they would likely have to happens and he would have to consular process ok in that consular process there's the government exercised in nova review over whether or not he committed a crime of moral  de and not give preclude a fact to the i j a is under review finding my understanding is yes that they would consider it simply persuasive but they would be deciding indeed miss ability at the time based on the facts somebody else so let me go to my question again i asked mr what what would be wrong i'm not saying i think this is what we should do i'm just trying to understand the upsides and downsides to what we write because we've had this three times a couple times non published is there anything wrong with saying all that the one crown was all that was needed and the big can go by the rule on the merits are decided has no proses effect and say it or just why would we just let the big decide what to do about it i don't want to tell them they have to reach the merits i don't want to tell them it has of effect because there is such a multi layered analysis ok and sometimes you go through consular application and there are other ways to do it it's so complicated is there anything wrong with that saying as to the two unreviewed findings you the be is the review on the merits or tell us vacate let's try those two options well you know nothing wrong with that well this case is sort of illustrated of of the problem in a low number of ways the problem that the petitioner is having is that they're taking what in some ways is dick  in ocean g the idea that i absolutely agree we're not bound by anything it's dicta it's a clean slate so let's get over that there's no case law i'm writing on a clean slate because i'm asking and this reminding to the board and asking them to make a decision on issues that were not essential for their for the for the for their decision in this ok so listen why is it wrong then to tell the b you can do the merits of iraq too but you don't have to but if you don't want to do it that's fine just vacate the ruling what's wrong with that part well your honor it's the reasoning behind the  about procedure and i think that if the if the court looks simply procedurally at this case the board made a proper decision they relied on back amounts but they procedurally said this is not necessary i think that gets at the heart of the issue and why we're talking so much speculative lee about what can happen afterwards and why this case in some ways should not be reminded like in a manner that suggests that future relief issues that were not at issue in this case that were not in controversy in this case can be a basis for remained to the board things that the board didn't have to decide and it would be honestly complete speculation on how it's going to affect mr macpherson in the future what i mean what level of discretion does the secretary have when he applies for readmission through a granted i won thirty petition is it complete absolute discretion in terms of a waiver  wherever he tries to get in legally so he has an i won thirty granted he moves to be admitted pursuant to that what discretion does the secretary have to grant him or deny him that relief is it absolute in unreviewable discretion your honor that actually comes up with a nother particular issue in this case in terms of that this idea that if the  board resolves this criminal issue to see i'm t that mr macpherson will magically be able to come back to the country i mean there are several in admissibility grounds in this case that weren't touched upon by the board because they simply weren't at issue i know what we're talking about the other ground though now and my question remains what level of discretion does the secretary have in ruling on his request to be readmitted pursuant to a granted i won thirty petition is it unreviewable is it one of those decisions by the secretary that is precluded from judicial review in conce processing it would be under review at that so that means that the problem because if that decision is under review will he will never be able to litigate that issue of a crime of moral because of the secretary says contrary to your suggestion today ten years from now the secretary says that this isn't by the i j a although one review is binding and reclusive you've been committed of a crime involving moral turpitude therefore your request to be admitted is denied if that's if that is an reviewable discretionary decision he has no other opportunity to challenge it he would have the haven't addressed it i wrote i did some work on this case and i certainly do not know the maze of immigration law it's a new world every time i enter it i didn't find anything that specifically addresses what record pages six hundred two six zero one appendix ninety four to ninety five this was in front of the immigration judge right after the immigration judge sustained the crime involving more turpitude and as mr macpherson not eligible for cancellation correct mr mckinney the government says yes judge based on the holding that he has a c i m t so not only what this have to have a facts it has already had precluded the facts in this case which body was that before  did you say in from the immigration judge you're on but that's before the appeal right before the appeal in challenging the cia and to your honor this is right but the lawyer can only speak about what's happening in front of him or her at the moment in real time so at that point based on the i j s finding which is obviously authoritative at the time it does bar certain forms of relief but that didn't speak for what the b i a was going to do in a later appeal i agree with that your honor of course the possibility of an appeal to the b i a was already at live at that time i think i like the idea would or it would rely on the ruling but what other grounds were there any other issues that you haven't raise here that were potential grounds for removal yes your honor those there were three charges remove ability one was for the visa issue the failure to maintain an immigrant status mr so he is removable on background he's challenging the other to a crime involving all turpitude on a crime of domestic violence so remove ability the kind of those are the only three that are there was not another one that he's not raising here no there were three charges remove ability that you assess that the immigration judge sustained is the holding you're asking us to make that the yeah a in every instance must either decide each grounds over movability or any determination upon which it does not rely for movability no it would be more narrow than that your honor what has to happen is that not only are there multiple grounds room ability the petitioner challenges the more severe of those grounds to one seeming to have these precludes effects and preserves that challenge and the board doesn't even explain why it was not reaching that issue and again i think you could also throw in the fact  are a real this is steve only means by which he can live with his family in the united states your honor if i could address a judge cause relief question for briefly i think you did although he may answer a question that i've got one more for you before he said ok what about this nom sic he says attorney general language is another approach again i'm just throwing out approaches to see the precedent so i'm just thinking out the might of judge grants things so here's the noms there we said we remain and it's of the b i connect clients expertise to clarify where this decision not to address the issue will have been a material pride to call a legal impact on his future ability to re enter that's right your honor and i think that's the same first predicate question that the board must address on remain and i think that's consistent with what this court said in ocean when they'd has that same language about applying its expertise in immigration law to determine whether it would have any material practical or legal impact on the ability to enter the united states because that is the first line explanation so i just said it does and then i use the next argument if it does then they have to do the other two issues practical effect they then got to get in the merits and that just seems like a lot of complicated litigation over something nobody needs to address right now well your honor it would not have been complicated if the board had provided this court without explanation i think part of the part of the complexity comes from let's say the board didn't want to reach would you suggest the board should have said well the board doesn't get to choose without explanation that it won't address the more severe consequences so you're saying they've got to do it in every case no matter no your honor it's narrower than that so where there is a challenge the more severe of those multiple grounds move bodi were on it's face they have these precludes effects then if the if the board wants to pass on reviewing that then at least the need to explain why it won't have these precludes effects because of waiver or cancellation removal once and so hasn't the united states just told us and there is no review ability for that decision i think what the consular officer would see is that the immigration judge has sustained the finding that the board has affirmed it and i would be the end of the matter had but  it i think it would it is possible and i don't think the get the government could guarantee that it won't be the case that the consular officer will treat that as minding well but if it's not legally binding i think there's a difference between the finding is legally binding and a consular officer may mistakenly believe that it's legally binding those two those two things lead to a different result no i mean maybe not your client but for our jurisdiction then potentially it's your view that well i think they are two different factual findings but again your honor i think the first argument here is that immigration is complicated and has questions about what the consular officer would do expertise and that immigration law and that what the consular officer would do rests with the b i a the board is the proper body that would be able to explain the finitude fully whether or not this has precludes effects not some representation before the court day and mr macpherson is entitled to that application of expertise in immigration law unless the court has any other questions i would urge the court to remount to the board of immigration appeals that very much and i thank you very much thank you both we're going to take a five minute break and then we'll