justice in two aspects that governmental misconduct in obscuring the fact that he had legal legal resident status at the time of his hearing that was obscured not only from mr of us but also from the immigration judge and the fact that he was not his failure to appeal the ninety three deportation order and his concessions why was he not deportable he was accused of entering the united states without inspection and having been convicted of a crime of moral turpitude and we know that he had been convicted of the felony for which he had spent some time in prison that's correct your honor so it was the first that my permit when and when a court looks at the whether or not the propriety of a deportation  so we now know applying subsequent interpretations of the law that california burglary statute under four fifty nine that mr allison was convicted of does not is invisible and is overbroad as is it as a and judge bolton i believe that that was the question was i believe the board determined not at entry but at the time of adjustment of status so what what what the court can review is basically what the board decided and the board decided not like any other type of adjustments that is so what happens is that the applicant applies and then becomes a temporary legal permanent resident and then on a fixed schedule as a matter of law automatically becomes a legal permanent resident so the issue is is what does mr although standard miscible at the time of adjustment of status to legal permanent resident temporary legal permanent resident that seems to know you questions about that at the time they arrest what is the obligation of the arresting authority at that time with the processing authority or your honor according to the i to thirteen the border patrol agents who arrested him they knew that he had legal says that said he has  he was admitted as a ts to which his temporary temper resident under saw the sol program so they knew that he had legal status however the two thirteen which is basically arrest report also says that he makes no claim to legal status so mr avalos didn't know he had legal status the government knew he had legal status the government did not correct the fact that it did not tell him that he had legal status and the fact that he applied for the permit well i believe that they said that he's here that he has t s two status so he under the central index system it shows that he had a status that he was granted temporary status and that means he had temporary legal residence at least now as a matter of law i mean as a matter or on a fixed schedule he would have at that time automatically adjusted to legal permanent resident i have nothing really known that he had already adjusted the central index system as referred to thirty but why does it matter and l p r is removeable if they commit a felony at least at that time that is a crime of moral tur so whether his status was temporary or legal permanent resident he was charged with coming into the united states not through a port of entry without being inspected and having previously victim of a murder moral turpitude that in one nine hundred ninety three was a basis for removal that he admitted was a pace is for louvel and he was removed in that would so i'm having trouble seeing why it matters that he had l p r status at the time because it wouldn't have affected his remove ability oh it would have affected his of relief availability for sure that that's my question but i do believe that if we look at the board underneath because of all the discrepancies inherent and eye to thirteen and the other documents that surround it so the board's decision in this matter contemplates only in admissible at the time of the just going to status and not at the time of entry so say we agree with you that the board made this error this legal error about the saw status i'm wondering if there's a separate legal error that might have also happened which is i'm a little confused why the board is talking about gross miscarriage of justice rather than just exceptional circumstances for reopening i thought the standard pursue a sponsor a reopening was exceptional circumstances not gross miscarriage of justice i don't know why everyone's talking about gross miscarriage of justice spontaneous reopening is discretionary where as we lights that if we find if we can establish a gross miscarriage of justice it's a it's a mandatory that the court needs to and the board must correct a gross miscarriage of justice i think also cases you have for that are really old exceptional circumstances and gross miscarriage of justice you know can be essentially saying the same thing i don't know but i think in this case a rises to the level excuse me your honor that so many improprieties or just kind of irregularities in the record good morning your honor may please the court jonathan ross for the attorney general to the extent that the court has jurisdiction over sue a spontaneous motion to reopen the court should reject mr of alos as gross miscarriage of justice claim  particularly where at the time of his deportation hearing in one thousand nine hundred three the immigration judge decided his case in accordance with the law as it existed at the time he heard there's no gross miscarriage of justice where mr this gross miscarriage argument but it seems like our question is just did they make a legal error and i'm not sure how we could say they didn't make a legal error under paris and rico that's correct your honor it's the government contends that it's more of a factual dispute at this point  i'm sorry paris so paris and is interpret in the statute says it's not so so i'm not sure i mean i know what happened later but it's telling us what the law was and so i don't think the board is right that it was the deportation order was appropriate at the time was anyway he entered without inspection so regardless of whether or not he had lawful status in this country his his act of entering into the country and committing a crime which judge bolton i don't necessarily have in the record that it was a felony at that point he was subsequently convicted of a felony but just to correct the record it was a first degree burglary offense and a serious burglary offense however the law as it existed at the time  timing of his temporary status under saw he received temporary status and approximately nine hundred ninety which subsequently two years later automatically became lawful permanent resident status and you're saying that's just irrelevant it's  relevant in this situation however because he the charge of movability was completely it was properly charged and that he entered without inspection and he committed a crime involving moral  lawful permanent residency he was in he entered without inspection and had committed a crime involving moral turpitude at the time ins the order to show cause and at that time would he have had any opportunity under the laws that existed to seek relief from deportation absolutely not a form of relief that that mr valas contemplates would be relief under i to went to see which had left was a period of seven years of continuous physical presence in this country as a lawful permanent resident the service of the order to show cause cut that off so that he could not have accrued the seven nine m so you said at one twenty yes exact situation where generally speaking in in one nine hundred eighty eight that is the period that we look to for his application subsequently in one nine hundred ninety when he applies for the first hard to know exactly why as i said if there's any reason that's that someone could be given another a number but ultimately whether or not he was given a number whether or not he had status at that point is immaterial where subsequently  he entered the country unlawfully he didn't have a lawful entry to even even if he had zero p r status he would have to effectuate a lawful entry into the country which he did not do it rather he did the opposite he passed back and forth over the united states mexico border multiple times admittedly without ever seeking formal admission that paired with the cia empty conviction in and of itself makes the order show cause however something such as jurisdiction i think can be can be evaluated on an ongoing basis and so the government's position is that i'm going to suspend the motion to reopen regardless of gross miscarriage of justice regardless of other factors i actually saying here's what the law was all over the board to take a look at this counsel's arguing courses there is an argument for gross miscarriage of justice but there's also was that that case was before the board's case law and before the ninth circuit case law it was the evaluation period of what what time is relevant in determining someone's remove ability that case is is cited justice just to focus it on the fact that at the time it was it was one thing although that changed in two thousand and six the law as it existed at the time was very  well actually you might have been misunderstanding but your decision is right because of x i mean because you agree that we can honor yes your honor in that paragraph when i was reading it as well i made it  however it's the purpose of that paragraph is not to suggest that there was some legal error committed in fact really i think the reason the board brings that up is to just really drive the point home in saying that at the time this entered the united states lawfully in one thousand nine hundred two that was actually contested underneath and there was no finding whatsoever in fact the only finding as far as or the only statement involving you know the  decision because it could go either way if he of the board had found that he actually reenter not what they said was he was charged with being an alien who at the time of entry or adjustment had been convicted of a crime of moral turpitude the actual charging document said he had entered without inspection and he says the responded admitted the factual allegations so why would the board have to in this year find anything more then you were charged with coming in without inspection at the time you had a crime of moral turpitude conviction and you admitted it and therefore you were just when do you address admissibility at the time of saw it just so i don't think that this could be read in a way that would be pertinent to any type of physical entry into the united states but rather a finding that's based on the adjustment as a matter of law so because the charge is put in the disjunctive and we had argued underneath that the two thirteen can't be reliable and there are three circumstances it should not allow said not bind mr avalos to his concessions this is something that we had addressed the board only found in this decision that but it appears to me is that he had they only found that he was in the midst by the time of adjustment of status not at it and three thank you thank you the case just