from an imperfect self defense situation in which she was a battered woman who was forced to do unspeakable things however she committed an act which she was convicted by a jury trial of attempted voluntary manslaughter and discharge of a farm in our brain are lower proceedings we tried to present the documents which speak objectively as to what in fact happened that the court of appeals which reviewed the conviction when in great detail to talk about the circumstances of the abuse of this woman suffered in one thousand nine hundred five she applied at the time she was not placed in the court and removed at that point they were called deportation proceedings  citizenship application was not necessarily the crime but the fact that she was in removal proceedings what the government did was they issued a notice to appear saying you are deportable and use that as a basis to initiate removal proceedings without in fact did was placed in removal proceedings and she continued her citizenship application because she filed for a notice of rehearing at the time we appeared before the immigration judge permanent resident for more than five years she also had established a period of good more character during the five year statutory period and she was not statutorily barred from establishing good moral character because their offense even though it was a serious offense occurred eligibility for naturalization however the judge in government argued that because of an old case one nine hundred seventy five case matter accrues you have to go back to the agency that placed in removal proceedings and ask for a letter five when matter cruz was written the district courts had exclusive jurisdiction to naturalize individuals however the ins that that time played an advisory role so the advisory letters that were in existence in one nine hundred seventy five  completely objective in nature and they were independent of the proceeding in this case and what happened in one thousand nine hundred eighty you have a situation in which that advisory position basically nullified and now when you of matter of cruise change in the statute to my knowledge no they would keep on applying it for the past sixteen years thinking that ins has an object of advisory role to the to a district court or to a court and that is just plain wrong and in this case is this case is a prime example of how it could be abused because she applied for naturalization which is problem she's promised they shall ajibola she gets placed in removal proceedings not because of the crime because it's outside the five year period and it's not a mandatory statutory bar and then she gets she she goes to the immigration court and they're saying go get a letter from the i ninety ninety you've been invested with the exclusive jurisdiction and the rationale of that case is just wrong outdated and obsolete and what we have now is just a regulation that says that an immigration judge may terminate proceedings upon a primal facial showing of citizen naturalization eligibility and the pending application and if she finds that she can move forward on a termination hearing based on humanitarian compelling grounds so you just don't get off the hook and in this case this lady had a claim for that and unfortunately she cannot secure that letter because it was impossible and they're basically using that same one nine hundred seventy five case we tried to get the letter we didn't get a matter crew still stands despite the change and no with no significant legal analysis but if they do state that we have to give some kind of future on their friends to the germination change in the naturalization process the secondary applique argument that we presented is also a valid argument based on the fact that when she applied for naturalization she as  justice noted she was deportable but she was still eligible for naturalization and when she applied she had twelve thirty nine point two fs as as a defense if she was placed in removal proceedings and she also has more terminations hearing on the twelve thirty nine point two half was ever denied tenure former ten year suspension of deportation was repealed in april one thousand nine hundred ninety seven a year and a half after she applied for naturalization and discretionary really unfortunately she's an eligible for any discretionary relief however that's presented the retroactivity claim under settled expectations however our primary form of relief was always the fact that she couldn't move to terminate proceedings and she had started such compelling factors based on the fact of her of the nature of her abuse that we believe that we should have had the right to a hearing now retroactively argument how do you illegal aliens who are illegal from the get go yes people who have not acquired legal status united states who are going to find themselves with the ins and basically state and i was eligible for discretionary relief for illegal aliens this is a also former suspension of deportation under section two forty forty two thank you thank you  my name is james grimes for the attorney general before i get into why cruz is still valid i'd like to address just flushers question i think it came up with respect to judge thomas well she was the portable in ninety five for firearms offense arrear also made a portable for commission of an aggravated felony so that was still there and whether or not the the the fact of removal hearing would have been the only reason that the agency would deny her naturalization application is something we don't know when the reason i can say that is the good moral character determination does not is not limited to just the five years preceding the application by statute regulation the agency has to look at the whole the whole picture and so her of the removal proceeding itself there was no absolutes to actually tory bar for naturalization that's correct it was no per se far that's correct so the flipside of that was that she might not er neighbor's house so there's there's definitely going to be a weighing there before the agency can say yes you are probably fifty eligible you can naturalized or no or make the year ninety terminations and she has she did have the opportunity to challenge the denial for naturalization application she had the opportunity for the agency and then she went to district court and i realized that this recourse that didn't have jurisdiction but that decision was wrong or this course  present which she didn't she didn't do that and i don't think that that not the question of whether or not she should have been naturalized is really within the scope of this petition for review and then don't like to focus on really what the court's far as exhaustion goes because the exhaustion issue was raised i think if you look at page twenty of the record the argument she made to the board wasn't that there was some sort of abuse of power or miscarriage of justice it was that the immigration judge should have held a hearing should i don't know that she addressed it whether the immigration judge had the authority to hold that hearing but that's that's what she that's what she exhausted now as to cruise i don't think the law is quite change as discretion whether to begin remove all proceedings against a person even if they meet the statutory definition of a person who is removable so he remains an element of discretion in all of us so here i of course there is i think within with the last year or so it seemed to me that the attorney general has been more willing than previously to entertain the prospect of mediation in cases that are close  option that i mean you may not be have the authority to say one way or the other but is that an option that would make any sense in this case well i don't think so you are in for half second and i can explain that and explain why why cruz source or ties in with why cruz is still valid and the point there i think is that the attorney general doesn't have the authority to determine whether or not anyone is from if they she eligible that authority rests by statute with the secretary of the department homeland security and is confer but my direct answer is i don't believe so because she said there is a valid removal order against mr and this she there's no issue that she's removals and aggravated found there's no question about whether or not i'm not sure that's right we have a i think a serious retroactivity question this is and i'm not sure that she cannot take advantage of the clear our law given the circumstances here we were just told that this is different from him and his angl not she actually is removable so there isn't really that it will definitely change whether he she ends up being removed well if you were able to apply for that yes that's right and we made i mean it's an open question as to whether we would hold the g s old able to apply the right depending on the retroactivity decision ten years was counted from the time so in the way you read the statute she could have waited forty years and still not be eligible even if she had been a model citizen and become a nun in the meantime and your reading of this so that is did not but if i could return to the primary issue i guess i don't understand what difference that well if they're if you're looking at a sort of alliance issue what she was hoping to achieve mr humanise at least was hoping to be placed in authority and as i talk about for the good moral character you have to look at the whole picture it's true she had she's not personally ineligible but will be for the agency determine whether or not she actually meets the requirements to show good moral character and because the immigration judge in the board don't have that authority deference to citizenship and immigration services is not only appropriate it's necessary so what what what is the person's avenue you have appeal from that she she didn't take advantage of that opportunity she could have done so the issue really simply comes down to one of authority the immigration judge doesn't have that authority so the board relied on matter of crews now there has been some discussion about the change the change in the statute i'd like to point out that if citizenship and immigration services fails to make a decision within one hundred twenty days of the first interview the alien can go to district court under a u s c fourteen forty seven b so there still is a role determination if the immigration judge were to make that determination that determination will simply be advisory because it wouldn't it wouldn't control the question that underlies determination in this sense is receive a communication from the agency and i'd like to point out i'd refer the court to page sixty seven of the record her house report relied on cruz before the immigration judge in asking immigration judge to terminate so that was that was her argument then them for the board she simply said the immigration judge should make the determination so she sort of changed tact and now saying that there's a statutory regulatory violation was a so there's no statute do an extermination the only the only place you can rely on is the regulation but as i said the regulation doesn't define ability and it doesn't give the immigration judge authority to make that determination so the board has filled the hole in the regulation in cruise which is simply a reasonable interpretation of the of get out of that box well we presented two issues your honor the settled expectations on the form of relief that was readily available with it was former suspension of deportation that that is  still an possibility if the court rules if the court screws up but however the court would have to find that she had settled expectations which we believe she did because as the court noted that already been already naturalization and she had two forms of relief available but i wanted to just address them issues that counsel brought up i wanted i represented this lady all the way through and we went through the end three three six hearing which was basically  decision discretion to put her in deportation proceedings that's the issue we're denying you and well the issue before the court is really not that the issue for the court is that when she was in removal proceedings she was denied forms of