the board cited two reasons for its denial the first of which is that the respondent is not eligible for said waiver because he is under a final order removal the second is that there is no provision in the regulations allowing for proceedings to be reopened and then administratively closed so that an alien who has a final order will qualify for such a waiver your honors i would submit that both reasons are at odds with circuit like again and watkins and with relevant regulations but most importantly they simply make no sense to say that the board will not reopen because a petition or final order  ignores the very premise of what he motion to reopen purports to accomplish what's begin with the proposition is it isn't it the case that the regulation says that in fact the relief sought by your client isn't available that there's a final order removal in consider more so is the point of what a motion to reopen which again would cancel that were there's even if this were reopened wouldn't your client be ineligible for the waiver because of his criminal history has no bearing as far as that invisibility that part would be discretionary when he submitted for his interview the conflict i'm not sure i understand that because my understanding is that the the waiver a waiver regulation in its preamble talks about why the regulation doesn't allow for the waiver when there is a final order of removal and the explanation given is that people may have crimes that led to that final order and they list a bunch of provisions and one of them is the provision for crimes involving moral turpitude so it seems like it's very much intended that you not get a six zero one a waiver if you have a crime involving moral turpitude crimes or the crime turpitude and i didn't read your brief is contesting that can you explain i'm not sure that this issue that you're certainly i'm doing now is something that i saw early in the papers your honor at the immigration court level  the judge's failure to read the immigration consequences but as far as the eligibility waiver went so they've been expunged but they're also on appeal can you explain what the posture is of these criminal convictions well they've been  that doesn't really solve the problem for immigration purposes expungement i don't believe does for the cancellation into p s it would need to be vacated as far as you know being able to avail that post conviction relief in a case of t p s and cancellation again for purposes of the waiver which is what the basis of the motion to reopen was the respondent or petitioner was simply asking for the board to review the factors that he had presented all of the relevan factors that he had presented there in order to determine but for his final order whether he qualified there's been ample amounts of cases both before the board and this court that criteria taking into account of course that there is a motion to reopen and again going back to the court and walk ins what it had said there was that the board's denial for the sole reason that the petitioner appealed her deportation order was an abuse of discretion it was  and i quote from that case the board failed to cite a single adverse factor relevant to its exercise of discretion in considering that motion except for the fact that she had previously been found to portable which would be true of any alien filing a motion to reopen that is the issue before the court today whether the board your circular reasoning in coming to the conclusion that his final order barson from the waiver and again i submit that that's the reason we asked the motion we ask for the motion to reopen that says this relief is not available to somebody is subject to a final order removal would be in effect if well again have them is not the case because you're basically saying it can be set aside if more decide to set aside time to make an assessment as to whether he would qualify but simply whether he should be allowed to apply to us it doesn't matter a lot whether he actually would qualify i'm still not sure i'm understanding and i eligibility but they don't specifically get into the merits of the application that they can adjudicate all they assess a centrally is whether the motion was timely filed whether it was supporting evidence to that effect and whether it appears at least on the face of those documents that this individual has a chance right and so i mean the chance needs to be a colorable chance right and so how is your client going to qualify even if he gets reopening well you morning me please the courts here bird for the attorney general should deny the petition for review because the board did not abuse its discretion in denying the motion to reopen first i'd like to address counsel's argument that the board's reasoning  removal is not an official legible to apply for this provisional six or one but even if the board reopened he would still not be eligible because the regulation includes a list of categories of individuals not eligible one of those categories is those with a final order of removal but there's another category for those in removal proceedings so if you reopened he would jump from one category to the other it still wouldn't be eligible because of his criminal convictions or because of some other reason no i not because of his career criminal convictions because of the plain language of the regulation but that the preamble to the regulation talks about no i i agree with on counsel that that would go into the petty offense acception as my understand i haven't looked into it but my understanding is the maximum punishment is one year and that wouldn't let it i think with regard to the your questions to her for cancellation of removing that crime is a bar what if it would render him either removable for a crime involving two or more tribute or in miscible you know there are two separate parts of the i n a and the petty offense exception applies in the in this ability part but not in there it's just one of those quirks to the eye in a sense so the criminal conviction i agree would be relevant as to the that would be something that c i s would weigh and that ice would weigh in once proceedings are reopened in trying to decide whether they're going to agree to administrative closure and that brings me back to what i do think would make him ineligible even if the board granted the motion to reopen and rescinded the final order of removal that just jumped him into another category of ineligibility aliens in removal proceedings  and in the preamble which you have obviously read it it discusses both categories because both are explicitly ineligible and it explains that as you said the reasons that they made aliens with the final order of removal and eligible is because the six zero one a was intended to be a streamlined provision it was it's just a separate process for seeking the unlawful presence waiver and it was intended to be for a narrow the reasons they gave to the commenters during the nervous and comment process for publication of the final rule for wide they were excluding that class but they also excluded the class of aliens in removal proceedings with a narrow exception for those whose proceedings have been  there well ok the only thing the hostiles between me and the waiver i see is the administrative closure so just like the b i is being asked to disregard the final order of removal or set it aside through the motion reopen it will be asked to administratively close right and that but that goes to my point that not only is he currently prima facia eligible but even if it's reopened there are still more steps it speculative and this court has a lot of case law about he could request administrative closure and the board has said that there are six factors for an immigration judge to consider in deciding whether to administrative leave clothes that's under matter that to c n n and you know one of those factors is the basis for any opposition and it's quite possible that ice might oppose space for his criminal convictions based on their determination that the case is when they want to move forward based on the fact that he's already conceded remove the delivery because then the next step for the six a one a waiver if it gets administratively closed then he can apply for it and then if it gets granted by c i s has to come back to the immigration court and seek terminations of proceedings that's sort of the process for someone in proceedings they ultimately not just administrative closure but terminations before they leave the country and i think that's another important court point for this court to consider is the six zero one a provisional waiver you know in two thousand and thirteen but the six zero one is the normal process in both the alien has to leave the country and consular process we're talking about a situation where he's not eligible for adjustment of status here  that's because he entered without inspection and although they cite to a lot of adjustment of status cases those are different because that someone seeking relief here what he's seeking is to leave the country and consular process go before the department of state have an interview based on this approved by one thirty visa petition filed by his citizen wife so no matter what whether it's a six or one day or the six or one he's going to have to leave the country and consular process and the zero one he is eligible to apply for the only difference between those two is that the six zero one a was intended to be a streamlined provision that just reduces the amount of time that the person has to spend outside the country which is ten years right a significant or no right no that's not right the if what he waves is a ten year unlawful presence bar but either way for waves there was ten years so what's the difference then between adjudication time so with the six zero one a they get to apply for that waiver while they're here and then go have their department a state interview so the process is they the petitioner citizen petition or files the i one thirty if that gets approved then they make an appointment they pay some fees in some paperwork and make an appointment with department of state to go have that interview overseas at the consulate office and then if they're el eight the provisional one they can go ahead and apply for that and that can get adjudicated before they leave the country so then when they end up with the department of state the department of state is the one flags the inadmissibility grounds like criminal convictions other admissibility grounds and they will see this unlawful presence in admissibility that would give rise to the ten year bar but then they would see oh but there's a provisional waiver now it's provisional it's not guaranteed but it just reduces the amount of time whereas only other side they would have the petition the i went thirty protection it's approved they get the department of state interview and they go to that interview first and then the interviewer is going to say well you have this unlawful presence that makes you an admissible you can apply for this waiver and then they can apply for  and they but it's just a it's just a different order and according to it in fact there's a been a proposed rule last summer to expand the six so when a not it still wouldn't apply to him but they're expanding that to petitions filed but other family visa categories and in that they estimated that it's about a five month difference according to their statistics in july twenty fifteen when they published that proposed rule they said that  it takes for the six zero one after the consulate interview it takes about five months for c i s to on average at that time to adjudicate that six zero one so the difference here is just a five month difference in the whole purpose pursuing a motion to reopen is speculative because those cases of yet to be reopened in there under final orders and don't even qualify for the adjustment which were in the exact same position here secondly the difference between five months and one week i would submit is lengthy when you have to prove extreme an unusual hardship for a six zero one day my client petitioner has young children and a wife here so five months is a considerable amount of time with that your honor again but she sure does respectfully ask the panel to find out as it has before that the board abused its discretion in going no further in denying the petitioners motion to reopen on the grounds of his order remov