to the chase here assuming for the moment you're right on everything you argue relating to the supreme court's opinion in judo long and this goes back didn't the b i a say look if we get to the merits we're going to deny it for the i j a and i guess affirmed by the and that's a matter of discretion so even if you win doesn't your client lose that that's a tricky question your honor and it has it has certainly given us a lot of thought since we read the decision in this case my client was allowed to file a discretionary waiver in conjunction with an a just in the saddest instead of a judge there's a great likelihood the decision would have been different i says for saying it's a great likelihood is if in large part it's based on my experience as an immigration attorney and in some part it's based on  immigration rules as they are i have personally witness and i have seen and it's reflected in the immigration laws well that someone who presents himself as a lawful permanent resident in front of the immigration court stands in a better position to be able to retain that the section chief forty eight of the immigration and nationality act which was in part designed to replace the former on a two twelve c relief section two forty eight creates two categories of individuals that ma cancellation of removal or waiver of their removal in in order to allow them to remain in the united states lawful permanent resident some of that category must merely show that they have been in the united states as a lawful permanent resident for five years that they have resided continuously for not less than seven years and they have not been convicted of an aggravated felony and then it becomes in their balancing of the equities in contracts someone who does not have permanent one who is seeking permanent residence through that waiver process must instead show that they've been here for ten years they've been a person of good moral character for ten years that they haven't been convicted of numerous offenses many of which are very minor and they then have to demonstrate exceptional and extremely unusual hardship so there were awful permanent resident or u s c spouse or child i think that that example right there clearly illustrates the dichotomy in the immigration system as it's applied to people who have hearing on the merits he was considered for a waiver but as i'm as i'm trying to illustrate for the court and i realize it's a difficult idea to latch on to that he was permitted to file a waiver but he was asking the court considering him as someone who did futile to let him go back to be the same thing over again i submit they wouldn't be honor that he would be looked at as someone who is retaining his her minute residence and is therefore only seeking a waiver of the criminal activity as opposed to someone who is also asking as something that's rather liberally granted there's even a reference i believe in the petitioner's argument in the case for the supreme court about how it is widely available and liberally granted and i  has been married to u s citizen and has children with her after a very long time has other family members here and only has this one conviction his record it seems to me but it's apparent from the decision it was a very close call and i think if we were to change this one but how does how do you know stiffer between the two what he had what would you like him to get i mean it's still a two twelve c analysis does the do the factors change and in terms of what's considered you know your honor is right the factors are the same whether it's whether it's a waiver under two twelve c in conjunction with an adjustment or it's a waiver on stand alone and in fact at the same factors that come into consideration in the cancellation of removal category that i reference and other categories on the immigration law  guess it's it's it's more about the positioning in the end the attitude in the approach that would have been taken with his case i mean from the very beginning we were fighting an uphill battle because we argued to the court that he should be allowed to file th status waiver approach it's that's the problem that you have and is that a matter that is committed the yeah he's discretion terms of what we give to that yes that is that is the the heart of the issue i suppose i mean without this conviction we wouldn't be having this conversation without a specific yes but it is a conviction for which there is a waiver the immigration law provides that he is allowed to have a waiver for it and so if he's eligible and if he's let's assume for the moment he's not eligible for he is eligible because they messed up on aggravated felony but isn't this a crime of moral turpitude yes and i don't think that that we believe if the initial consideration had been different if you had been appearing before the court simply as someone looking for a waiver of that criminal activity not also asking for the privilege of adjustment of status that the court's conclusion would have been the same when i look at the  crime unfortunately from the response perspective the court does not believe the responder can meet the requirements to merit the kind of discretion of the one truly sympathetic about the people who are going to be impacted whether the family has three children  he just couldn't go in his favor and you go to page you know throughout and ends up on page eleven it's sensitive that it has a long term tenure sensitive that this may cause lifestyle changes sensitive to the  effect on others but he concludes on twelve i just can't do it in the b eyes saying the same thing it's almost it's a tough call but jurisdiction when there is discretion and they only got to that discretionary determination after making initial eligibility determination utilizing the comparable grounds approach if you go all the way back to the beginning and it i guess i would ask the court to consider this case i realize it is different but look at it in the context of if he was initially denied relief using the comparable grounds approach under two twelve we were able to ask for an alternative relief from the court much in the same if he had points in the immigration judge's decision show that this was a very close call if we change those that are never said yes yes i mean if he if we had not sought that as an attorney if what the judge had not found that he was eligible for that alternative then i think that would be an automatic that you that this court would be sending the case that because he was denied relief on a matter of eligibility he did have an alternative to pursue it in this case it's a very overlapping alternative so it's hard to  same place and then i guess that that's that's where we feel that we don't we feel that he he was presented to the court in a different manner and i don't you know i don't really know specially as i see my time is about to expire well you know another w articulate that other than my experience what i've seen in front of the immigration courts and and the fact that this has been rather liberally granted to individuals with very serious crimes like my clients in good times i know this is wro be for them to consider what to do in light of your law yes i think that would be a great that would be a very sceptical solution at this point and i hope that given all the factors and what we are you don't motion to reopen in this case that the calling and i said that at the outset but let's assume for the moment there's a supreme court cases come along and it you might you might completely be right that it's futile but why not at least give him the shot even though it may be a one in one hundred shot that this court's in the words let it be i have the first chance to deal with how it evaluates this case however the bar and all likelihood will disston i and its discretion and you're right she agrees that they very well may very well do it now she may why is it the you let somebody have not just a foothold here but basically become you know for all intents and purposes about as american as you and i are except for the for the the label and this is a case where the fifteen years right and that just and even you put us in a situation where you say ok that's the law and that's what we're going to do but why not give them at least but the board viewed his residence as a positive factor and weighing the factors and whether to i have the board decision coming to the reopening coming down in june of two thousand and eight is june two thousand wife's condition that would have that's material evidence and that's untrue all to the question of the two twelve waiver the board considered it why did why would not the board let the i j a in the first instance determine the significance of he's had a hearing or considered the evidence as raised his being given significant process i'm sure the board could know i have one more question in terms of rehabilitation doesn't a person's actions speak louder than their words and why is it so significant that he does not acknowledge guilt he contests that maintain innocence yet for if you go back to the one nine hundred eighty s when his act was committed you know he's got almost twenty five years or more of conduct where we have no problem that we can see with him wouldn't that suggest that rehabilitated even if he doesn't admit that he has done it suggests some rehabilitative efforts the board and in considering his effort how could it have happened and cases of the nature were especially where he young victim and the victim has no motivation to lie yet he maintains his innocence the jury this is left with that some what if or the family or his wife at the time of that how he said that evidence such as that maybe who knows but the fact is that the board weighed the factors as it was different if if they were to apply the two twelve c to petitioner there is no reason to say that they would apply a different standard been in the united states it's continued compliance with immigration and with his requirements under the new jersey state law his wife's medical condition which continues to deteriorate one more chance to look at those factors and the pendulum could swing our direction you know it was clearly a very close call the judge immigration judge remarks in his decision how difficult it was for him to come to this conclusion and i think if they were given one more opportunity to look at it we have a chance maybe it's not a great likelihood but we have a chance that a man who's been in the united states for twenty two years has been married to the same woman for more than thirteen years and they have two children together and he's helping raise one of her children and has done nothing else on his record as a blemish other than this incident from more than twenty years ago or nearly twenty years ago that this is the i think it could swing in our direction and have you represented this person since when i represented him i believe it was right around two thousand and seven he came to o ffice when he initially got the notice to appear in court or actually i take that back he came just before that when he was looking to apply for renewal of his screen card as was remarked in either the petition or the respondents case arguments many of these people that apply for two twelve c they have to have convictions that are more than fifteen years old or they're not eligible they come to the attention of the courts not because somebody has gone out and picked them up because they've done another wrong but they come to the attention of the courts because they're either applying