tossed out in joining well fifty two f one talks about enjoining and restraining and twelve fifty two and three talks about the state and the court concluded correctly that it would be absurd to argue that the state that is contained in twelve fifty two and three is the same thing is that is the enjoining and restraining as contained in twelve fifty two b and twelve fifty two f one and two and the court said it makes no sense if we define the word state in the context of that particular statute to mean the same thing as to enjoin because you have a directly and hand the court wouldn't be able to apply its standard other than clear and convincing on the other hand if you consider states to be saying in the other context then it would mean that the definition and the burden of proof of the stay would be much lower so would be a totally contradictory result and so the court correctly concluded that in that context alone a stay as congress intended with regard to a petition for review we would have again an absurd result we would have a situation where somebody files a b s and if he's not granted a t r o his case is over because at that moment in time he will be removed and he ha no recourse whatsoever to any legal remedy on the other hand if the tear always granted the government has no recourse and for that reason the government concurs with us that this court has jurisdiction because either way you look at it if you can't you have a final decision even though you never reached a decision on the merits because whatever the just record judge does that will be totally dispositive the second element is the old adage if it which was very limited in scope and even the court the district court noted that the district court before it specifically to it as a thier own injunction and that's what happens in all hideous cases when you file a b s you always file concurrently with  my time for rebuttal of supper one thing in the government brief although the order of the court only specifically asked for us to address the issue of jurisdiction the government raised also the issues of the merit strong and certainly comport with the abbassi standard i mean there's no question that an individual who asked for adjustment of status the only reason he changed for the immigration service in the first place is because of a program that has now been disbanded because it was considered to be improper by the government which is that special registration program that only applied to people coming from middle eastern countries or islamic countries and he was brought to the immigrations attention only because of that he already had an application pending he qualified under a statute called two forty five by that specifically said if you are out of status but you applied before april thirtieth of two thousand and one you are grandfathered in and you cannot be removed because you're entitled to adjustment of status and he goes into an interview and the only document that's missing is an affidavit of support that if they give him two hours time he could've rectify that  deficiency and during that very short period of time they invoke a very esoteric statute called the visa waiver program where they say well technically you don't have the right to appeal to an immigration judge which the regulation specifically says you can appeal denial under a visa waiver to an immigration judge so what happens is they made it removed to remove this individual they gave him a denial of his adjustment of status and if you look at exhibit t which was given in the brief attached to the brief by the government it doesn't even say why he was denied adjustment of status it just says you've been denied a just for the status because you are under a visa waiver your remove you have no right of appeal but by will actually all denials of adjustment of status by the immigration service are final decisions you don't have a right to go to an immigration judge unless they put you in proceedings so what in these cases if you cry for just one of status and they don't push you and remove the proceedings you're allowed to go to federal court on a declaratory and that's what he would have done anyway if the adjustment of status had been denied and he had not been taken into custody and uniquely put into a removal process he would simply file a declaratory under the a p a and he would be eligible for this record review and the ny circuit would still have jurisdiction to review the case under the a p a as a review of a decision by the agree that the ultimate result is the same that that the court does have jurisdiction over this appeal i believe we have slightly divergent views about the analysis that would be appropriate i believe andrew is not necessary  and a look at federal civil procedure sixty five b where there's a discussion about whether it's characteristics of a temporary restraining order it is more a situation of a very short period of time where where oftentimes the parties are not given an opportunity to be heard there oftentimes not even put on notice and the court enter some sort of a temporary restraining order for a very short finite human time and this is not the case here the parties were on notice the parties were given an opportunity to be heard there was briefing obviously it was on a very expedited basis and i believe that's more because of the special nature of these cases when they do come and become an advocate for a restraining order quote unquote but that has its own procedural mechanisms and through which an alien is given a very finite set of sort of procedures for the benefit of gaining entry into the united states without having gone through the general consulate review procedures for seeking a visa i would also like to point out that not only petitioners have failed our petition has failed to show any talent i'm sorry i'm s opportunity for a hearing or judicial review of that decision by any court that's a government position well if we assume an argue and a that's correct we're not in argument over that because we're talking about reviewing the denial of the they didn't give him time to correct the deficiency which they're supposed to do due process mandates that they have to give him time to correct the deficiency what they said is oh we couldn't adjust you today that's it you're removed now what would have happened if you had all the documents in his possession would have been adjusted it wouldn't have been adjusted well we'll never know because the decision that was issued by the immigration service didn't address any of those things if you look at the decision by the immigration service denying adjustment status that says you're adjustment is denied because you entered the united states under the visa waiver program you have no right to appeal goodbye you are removed they didn't even give a reason why they do not is adjustment of status so you have an incredible due process issue here regulatory only statutorily he's entitled to correct the deficiency secondly he would have never been brought before this into a removal proceeding had he not  children who are two years old and five years old of course that's the repertoire and the government stance or today tries to argue that in fact this is just a simple removeable issue it is not a removal issue this is an issue where a person was than i do process waiver program your waiver has to be knowing and intelligence what are we talking about we're talking about an individual who takes a twelve hour flight comes into an airport and is given a little green card that's three by five inches that you almost need a magnifying glass to read the words because it has sixteen different conditions on it and you're asked to sign the card at the airport you have about thirty seconds while you're going through your admission process so of course you sign the card and then you find out that you quote unquote knowingly and intelligent y waive your right to a hearing of course not you have to have a hearing on evidentiary hearing to find out whether or not you knowingly and intelligently waive your right because the statute requires that finding that it be knowingly and intelligent y done there's no evidence that the government presented that it was knowingly intelligently done other than the fact that it's presumed that he signed a document that the burden is on the government contrary to what the government says and so for that reason alone the court should exercise jurisdiction and grant the request for a stay or this case what we call an injunctive relief whatever we want to call it in terms of how the court will respond to all of these cases i think it's the court takes an opposite view and a angio to intervene and impact on what we are doing here today we will have actually chaos because what you will have is you have a statute that specifically grants rights twenty to forty any other statute even under irq which almost takes virtually away all judicial powers the court has consistently held that that hey be a statute stands independently now what will happen today is if the court decides a doesn't have jurisdiction or be it makes a decision quickly on the merits without looking to an evidentiary proceeding where we can actually find out what were you see on the merits or to where you one question is do we have jurisdiction over this appeal the next question is if we have jurisdiction should we give the state granting appeal and the third question is how you decide the appeal granted the court ultimately should make a decision down the road but until such time as the actual merits of the case come back to the court it is our position that the station be granted and specifically the stay should say a pending resolution of the district court case and if the district court finds one way or the other depending on how the district court finds if it comes back to the ninth circuit at that point in time the court would then look to the merits of the case but right now really the issue is that the case has not been developed through the district court so what that is why it is it is crucial that in order to preserve the sanctity of  want to assure you that in some cases it appears that some headway could be made in particular circumstances the media or so we inquire and then we allow other parties to express their desires about it