I didn't know. You're not wearing a label. That's all. Yeah, please. Court, Mr. Katona, for the petitioner. Electors are of two minutes per model. That's granted. Thank you, Your Honor. This court, this case is before today. I believe for a couple of reasons. Firstly, I don't believe this court has issued a presidential decision on some of the issues that we are looking at today. And also, I think it's important to keep in mind that the jurisprudence and the legal backdrop against which we are hearing this case today. In the last several years, this Supreme Court has issued a series of decisions that seem to clarify the ever increasing awareness of the ambiguities and the inconsistencies and immigration laws. Since about 2003, the government has given a renewed focus on immigration enforcement. And I think a lot of these ambiguities have as a result come forward, which has resulted in these decisions being issued specifically to Padea, Vartelas, Dutelang, and... We have a pretty discreet issue here. We have a pretty specific issue
. Do we not? The application of the stock time rule in the fact pattern before us. Correct? Correct. That is one issue. I also believe there is the issue of whether a two-to-one-see and a cancellation rule can be made in conjunction. I do feel that that's a pretty much issue as well. That's one of your later arguments. Correct. Could we address the initial argument, which has to do with the retroactivity of the stock time rule and applying it here, whether there would be an impermissible retroactive effect? Absolutely, Your Honor. Now, in 1995, your client committed an offense. Correct. And he was not then, he would not then be eligible for a two-to-one-see waiver, but instead he was deportable at that time. Is that not correct? He would not have been eligible for a two-to-one-see waiver at the time. However, under two-to-one-seger's prudence, he would have been allowed to continue accruing time towards the seven years of continues. My question was, he was deportable, correct? Correct. And under the stock time rule and under the application of it now, he is deportable under our era. So there's really no changed consequences by virtue of the application of the stock time rule. That is assuming that the stock time rule is applied retroactively. If we look at it in a different way as imposing as there being a temporal limitation on retroactivity of the stock time rule, then we could do it in a different way. And I think that Vartelos actually gave us that perspective
. Vartelos essentially stood for whether or not a pre-event or a conduct prior to Ira-Ira. As applied to post-Ira definition and admission, which is codified under 101A of the English and Act, would be permissible, and the court found that it would not, because of the additional or disability that it would impose on the petitioner's ability to travel. Okay, but here we don't have an additional disability. We have the same effect, deportability. He was not eligible for the 212C waiver. But my argument here, is that Vartelos took a different perspective. If you take the perspective that we write to apply for 212C, you have to invest it by the time he had committed the crime, then you are correct, but our argument is that Vartelos looked also at the imposition of a new disability on past conduct. But the question, the focus, rather, I should say, of the judge's question is, what's the new disability? There's an independent basis for deportation here, the 1995 conviction. And the question is, how is there a new disability created by the application of the stop time? Well, again, my response would be that the disability would be that he would no longer be able to accrue time towards meeting in seven years of continuous residence, because of this new law, whereas prior to Ira-Ira, he would have been. So, you're assuming that the IRISE is going to sit there and say, oh, we're going to let him accrue, and we're not going to throw him out of the country. He really had no right to be sitting around for seven years to let that accrue. Correct, correct, but it could have been, in theory, a criminal defendant sitting down with a criminal counsel could make a calculated decision as to whether or not to plead or go through the process of taking a case to trial, based on how committed assumption was happening at the time. I mean, you know, enforcement at that time was not as prevalent as today. Well, you see, that's where you lose me. Sitting down with your counsel at that time, the facts of life are, you are deportable, and don't plan to be around for seven years. Well, in your case, it would be better, right, if this were a 1988 plea, or 1988, or whatever, and then you'd say, well, he's already been here for seven years by the time the statute goes into effect in 97. But I don't read Varteloss or any of the other cases, certainly none of the cases from our circuit as saying that short of that circumstance that you satisfy the new disability. Well, I mean, that's taking the view that the temporal limitation would actually kick in essentially upon the passive of Ira-Ira. But if you also, if you take a slightly different perspective that the temporal limitation essentially kicks in whenever the circumstances of the stop time will actually trigger, which is the subsequent conviction in 2005, then by that time, so again, what we're all doing is essentially that the stop time rule essentially should not retroactively apply to our client, and it should not retroactively apply, it should not actually apply until the 2005 conviction
. I'm not getting at that time, he would have had seven years or so. How is it impermissively retroactive? That's what I'm not getting. Well, I believe it's in the way that you define what a disability is. And my argument is that all the courts that have been looking at this issue look at it from the perspective of a vested right. And Varteloss looked at it from a completely different perspective because Varteloss was essentially taking the land graph and basically looking at the definition created by the land graph as to retroactivity. And the land graph essentially said that a regulation is impermissively retroactive if a right or an indiscibility is created. So if we apply land graph, how do you prevail if we apply land graph? Well, I think most effective argument is that the two-trial C application should be permitted in conjunction with a cancellation application. And I believe that's the most effective argument. And if I could get to that point, I would appreciate that. But you're not eligible for a two-trial C waiver. And your conviction still exists for purpose of cancellation. Well, two-trial C would be eligible for two-trial C as to the prior pre-IRA conviction. What purportedly disqualifies him is what can not be applied to the post-IRA conviction. But if the two waivers are made in conjunction and the two-trial C applies to the prior conviction and the cancellation applies to the post-IRA conviction, and the purpose behind the statutory provision which says that a one-time cancellation grant can be issued is essentially satisfied by this reading. So, you know, we've reached the question of addressing those requests for relief concurrently if we hold against you on the retroactivity point, right? I just said yes. Question regarding our opinion non-cresidential. Urada Delgado. There Judge Jordan and another colleague believe that the characterization of a situation such as this, where deportation would have followed upon the fact that the crime was committed, and there's no eligibility for the two-trial C waiver, and the same consequences would occur here. The view expressed in that majority was that it was not there was no issue of retroactivity because I re-ra post-dated the commission of the offense, and I re-ra is being, and the deportability is based upon the 2005 conviction
. Is that the reasoning that you think follows here? Well, no, I mean, I actually take issue with that reasoning. You know, again, in the Juraud of decision, the court essentially said questions of a retroactivity to rise when a case in placate the federal statute enacted after events in a suit. And, you know, reasonable minds can differ as to what events in a suit mean. It could mean all events in a suit, which is essentially the perspective of the court to work, or it could mean the events in a suit that are affected by the passage of the law, which is the perspective that we would take, and we would argue that given sort of the change in Jura's prudence and its prudence and its prudence and its prudence, and the court decisions that a more narrow interpretation we interpreted or would be taken by this court. Secondly, the second problem of the decision as related to retroactivity sort of did essentially imply that the stock time will would be applied retroactively. And so our argument is that it should not be applied retroactively in light of reasons between court decisions on this very issue. Well, the majority concluded that there was no reason to even undertake a retroactivity analysis because it viewed this as Congress declaring people who commit certain offenses to be removable. And then carving out a certain class of people for relief from that. And the definition described to it was that people who did not commit an offense within the first seven years in the United States would remain eligible for this relief. If you look at it that way, why is there any question at all about retroactive application? Why isn't that application of Iruira to post Iruira conduct? Well, I believe that the imposition of the stock time rule, we don't actually view that as a qualifying ground. If you look at the cancellation regulation, there are essentially three qualifying elements. One, that there would be no aggravated felony, two, that the individual have held a residency for five years, and three that there would be a seven years of continuous residence. The stock time will actually access a disqualifying factor in subsequent provision of the cancellation regulation. Similar to Vartalos, Vartalos had a pre-Iruira conduct. And a question whether that pre-Iruira conduct applies to essentially the exception of an under-admission. So again, the disqualifying factor under-admission because a 101-A13 essentially says that a resident should not be seeking a re-admission to the United States. Unless that person has committed certain offenses. And so the court had said, well, we can't impose a new disability, i.e
. preventing that person from traveling on pre-Iruira conduct. So they clearly created temporal limitation to that definition of a disqualification. But that disability of prevention of traveling wasn't there before, correct? So it was a new disability. It was a disability just in the same way that 2.12c was not there at the time he committed B95 offense. But the disqualification of the opportunity of 2.12c waver was there, but he didn't qualify for it. Well, he, every day that passed, he essentially qualified, you know, would have qualified in that no human representative allowed to be. But at that moment, he didn't qualify. I think that had been way too close to the final. Let me ask you this. If we found as you would hope that we find that the 95 conviction did not stop the accrual of time and therefore it was imperm- Well, argument would be, again, that he would have to- that he would be able to valum-self for applying for 2.12c and cancellation in conjunction. Again, I believe that's the strongest argument the other way of looking at it as that if the temporal limitation placed upon him, and the triggers at the time of the 2005 conviction and he would have at that point accrued seven years, then he could apply for cancellation alone. Can I ask one more? So let me ask you about the Brazilian flores, which is a presidential opinion from our court that's slightly different, but seems somewhat applicable. Why wouldn't we apply the reasoning from that case to say that this situation is not impermissibly suggested? I apologize, but I'm not familiar with that decision. Okay. Well, it's a- I'll have a few bars and hope that you remember it. Okay
. Okay. We'll jog your memory. So it's 2007 presidential opinion from our court and it- Judge Jordan, the quick down-and-dirty is the stop time rule was retroactive to aliens who committed offenses prior to the passage of Ira-Ira and after the alien committed crime of moral topitude, which triggered the stop time provision, there was no new period of continuous presence commenced. The bottom line is that they denied Brazilian petition for review and the key was Brazilian stop the cruel time of continuous physical presence when he committed his first offense. It's somewhere interesting. Earlier offense, later offense. Correct. Judge Jordan, memory. Yes, Your Honor. Thank you. So, again, this is a 2007 decision I believe. Yes. And, you know, we've since had Vardalos again. My- you know, our- the reasoning is that Vardalos essentially has changed, you know, the analysis on retroactivity and that, you know, it has created a temporal limitation, which this court should recognize. And, you know, it's a question of, in my mind, where that temporal limitation resides, whether it be upon the passage of Ira-Ira or upon the commission of a subsequent post-Ira-Ira offense. And we would argue for the letter. Yes. Do you- you're not arguing on appeal that the retroactive application would take away or impoverished rights or create a new obligation or impose a new duty? Right. All we're dealing with is whether there is a new disability
. Correct, Your Honor. And, on the question of whether the- the board properly declined to terminate the proceedings to allow your client to pursue naturalization, didn't we already answer the question about the reasonableness of matter of it all go in the sequence? What was your answer to that is raised in your respondent's brief? Well, my answer to that is that in this particular case, you know, the Board of Immigration Peals did not give the petitioner a sufficient opportunity to lay out of the ratified client for naturalization. You know, and we feel that that is, you know, a clear contradiction to the regulation, you know, but that's a play. So, how was that impact on the DHS? Not a testing to the eligibility. You saying he didn't have enough- So, the regulatory clearly says that the- that the alien shall be given an opportunity to make a bona fide claim for naturalization. The- our client, the petitioner was not given that opportunity. Rather, the court said, you know, you did not seek a bona fide eligibility finding for DHS, but there's essentially no avenue for that. DHS does not provide an avenue for someone prospectively seeking a determination as to whether or not they're eligible for naturalization. It badadjudication of that determination is made at the time of the peer for naturalization hearing. And so, you know, what we're all going to essentially be the- the petitioner should be just giving an opportunity to set forth whether he meets the statutory eligibility requirements under the law before the judge, and that opportunity is not provided. All right. Thank you. We'll hear from you on the rebuttal. Thank you. May it be according to the Madness and the Half-Nosed States Attorney General Eric H. Holbert Jr. This immigration case, the Board of Immigration Appeals correctly found there is no retroactive effect to apply and stop time-wield to petitioners. Now, should the permissible retroactive effect- The permissible part of the land grab analysis and with Herada, this court's opinion, unpublished, I would argue that's actually the correct way to think about this. We're young and get the land grab step one and step two analysis because there's simply nothing retroactive about applying cancellation, we're able to pre-array conduct such as this
. Well, let me ask you that. In that case, Judge Jordan, in that opinion, Judge Jordan said that we don't agree with the Ninth Circuit, the Sinatus Crews case. Right. But as if that case were incorrectly decided. But in Sinatus Crews, wasn't the real animating factor there, the fact that what would have been here the 2005 conviction was under prior law. Not disqualifying from eligibility for the 2012 save waiver. Whereas when it was reclassified by Errera, it was. So it really would have had an impermissible retroactive effect. Would it not? In Sinatus? Yes. Okay. So we're not necessarily disagreeing with Sinatus, nor is it really fair to say that there can be no retroactive effect. Neither could be an impermissible retroactive effect. In that fact pattern, but your contention would be here, there is. We don't get to that because it's all about the relief side of it. And cancellation of removal as far as petition was concerned in 1995 was really prospective relief. It did not exist yet. So therefore, as I've read states, when a law applies to pre-conduct before law is enacted, that does not simply by itself render a law retroactive or retrospective. It has to, in parabested right, create new disability or new obligation because of that prior conduct. So it's weird that in certain situations such as this, your argument is it's not retroactive
. Right. But in Sinatus crews, it would be retroactive because it would be impermissible retroactive. When there was a moveability ground at stake there, too. Wasn't that part of it was that there was a redepenition of the ground and building. The whole point, yeah. It was reclassified whereas when it happened, it wasn't moral torpedo. And he was eligible for that 212c waiver for the later act to reclassify and say, oh, so sorry. Guess what? It was a moral torpedo. Yes, I prefer 212c, which is something that a vets would write to at the time. Exactly. Here's different because it's only about cancellation of removal, which did not exist at the time. So no vets would write to it as it would be in 212c or petitioned was eligible for 212c. And also did not impair, did not impair that vets would write. How about disability? Your colleague wants to urge that Fartless changed the whole scheme by saying a new disability, which he claims he has, because now he can't accrue this seven years. I think Fartless and St. Cyr are very instructive on this point. And new disability at language doesn't change the land graph calculus because of disability presumes there's a prior ability to do something. And in this case, there's no ability to have cancellation of removal prior to its enactment with a rear didn't exist yet. So there's no disability on that front
. So if there were seven years of continuous resonance before the commitment of the offense and also before the passage of a rearer, would try attempting to apply that be impermissively suggestive? I'm saying there's seven years of continuous presence for 212c purposes prior to rear. But I'm sorry, I'll be more specific. It's an 88 conviction. So yes, is that right? Yeah. Yeah, math gets tricky. So yes, seven years of continuous resonance. The question. Drive to rear. Yeah. Yes. So the question is, is trying to apply a rearer to that situation impermissively suggestive? No, because again, if you're happy to place in proceeding subsequently to that, for cancellation removal to arrive to be an issue. Because at the point where you're seeking cancellation will be subsequent to a rear in some other proceeding. In that case, you could get 212c if you're still available to him because you're eligible at that time. That's St. Cyr. He had a vested right to tell the way 212c. As far as cancellation goes, it's still prospective relief at that point. It didn't exist yet. And so I think that's why St. Cyr environments are so instructed because St. Cyr, for example, was a law of permanent resident who played guilty on reliance on 212c. At the time, he was eligible for 212c statutorily. Therefore, when a rearer is passed and repealed 212c, it took away that right from him. And that's where the court found, and yet a right before a rearer was taken away by a rearer. As far as this was the same situation. Was that really critical to the court's holding? I mean, why shouldn't we think of this as a permutation of St. Cyr where the court held the fires to a rearer? Aliens, like St. Cyr had a significant likelihood of receiving the Section 212c relief. And because we're spotted in other Aliens like him, almost certainly relied upon that likelihood and decided that if we go there right to a trial, the elimination of any possibility of 212c relief by a rearer has an obvious and severe retroactive effect. Here, the ability, as the adversary is describing it, was the ability to either delay or hope that, apparently, as was often the case, there simply was administrative delay, so that those seven years would accrue. Yes, and that's again just for 212c. And so that's why St. Cyr goes to that because reliability aligns on 212c relief, which existed at the time. And so I'm pretty glad that proceedings, I'm potentially get 212c. But the question is, was there an ability that is now lost? In other words, is there a disability because previously there was a reasonable possibility of those seven years of lapsing, and that's now gone so that it is a changed legal consequence? It's as a reasonable possibility that he could do that for 212c. But when cancelation not existed, there's no reasonable possibility that he could get before it existed. So there's no retroactive principle as far as cancelation removal goes. Because he didn't have the right in 95, and he wasn't able to do it
. Cyr environments are so instructed because St. Cyr, for example, was a law of permanent resident who played guilty on reliance on 212c. At the time, he was eligible for 212c statutorily. Therefore, when a rearer is passed and repealed 212c, it took away that right from him. And that's where the court found, and yet a right before a rearer was taken away by a rearer. As far as this was the same situation. Was that really critical to the court's holding? I mean, why shouldn't we think of this as a permutation of St. Cyr where the court held the fires to a rearer? Aliens, like St. Cyr had a significant likelihood of receiving the Section 212c relief. And because we're spotted in other Aliens like him, almost certainly relied upon that likelihood and decided that if we go there right to a trial, the elimination of any possibility of 212c relief by a rearer has an obvious and severe retroactive effect. Here, the ability, as the adversary is describing it, was the ability to either delay or hope that, apparently, as was often the case, there simply was administrative delay, so that those seven years would accrue. Yes, and that's again just for 212c. And so that's why St. Cyr goes to that because reliability aligns on 212c relief, which existed at the time. And so I'm pretty glad that proceedings, I'm potentially get 212c. But the question is, was there an ability that is now lost? In other words, is there a disability because previously there was a reasonable possibility of those seven years of lapsing, and that's now gone so that it is a changed legal consequence? It's as a reasonable possibility that he could do that for 212c. But when cancelation not existed, there's no reasonable possibility that he could get before it existed. So there's no retroactive principle as far as cancelation removal goes. Because he didn't have the right in 95, and he wasn't able to do it. So there's no disability because he wasn't priorly able to get cancellation of it at all. But if the question is whether for a seven-year period, we should stop the accrual of the time retroactively. For a time of separate form relief, not 212c. Right, he had been here for seven years after that. Let's say the lawyer says, well, it's okay, you could plead guilty. You could be deported, but they're not going to find you. So hang around for seven years, and you can get 212c. And that's what St. Stuart says, that that scenario had a vested right to 212c. But the only vested right, something didn't exist yet. And that's what Hirata was stating. You don't get to land grab because cancellation was said not exist at the time, which is purely prospective. At that point, it's just wherever eligibility requirements congress sets out for that form of relief. In Hirata states, that's where the menu of choices language comes in. They say, you can't simply pick and choose which eligibility requirements you want to apply to your case. Because if it's prospective relief, you don't get to land grab. Because you just have to conform with the requirements for that relief. Because it was prospective to you before it existed. So that scenario, I say, that Hirata is the correct way to think about it
. So there's no disability because he wasn't priorly able to get cancellation of it at all. But if the question is whether for a seven-year period, we should stop the accrual of the time retroactively. For a time of separate form relief, not 212c. Right, he had been here for seven years after that. Let's say the lawyer says, well, it's okay, you could plead guilty. You could be deported, but they're not going to find you. So hang around for seven years, and you can get 212c. And that's what St. Stuart says, that that scenario had a vested right to 212c. But the only vested right, something didn't exist yet. And that's what Hirata was stating. You don't get to land grab because cancellation was said not exist at the time, which is purely prospective. At that point, it's just wherever eligibility requirements congress sets out for that form of relief. In Hirata states, that's where the menu of choices language comes in. They say, you can't simply pick and choose which eligibility requirements you want to apply to your case. Because if it's prospective relief, you don't get to land grab. Because you just have to conform with the requirements for that relief. Because it was prospective to you before it existed. So that scenario, I say, that Hirata is the correct way to think about it. There was no vested right to cancellation before we actually didn't exist yet. And there was no new disability attached to his rights for cancellation rule, because you were never able to get it at 1995 at the time as conviction. Why isn't Fitch Loveter's concurrence there right to think about the government's ability to pre-termit cancellation of the application as based on a retroactive application of the stock time rule? That's to pre-arrere conduct. What the legal significance of that pre-arrere conduct depends on the new stock time rule in Arirah. Well, I would say in Land Grab, and I'd say just because it applies to paracomic is not make a law retro-respective. It has to impair the attached new disability. And that sense, I would continue to argue Hirata, which said there was no new disability or the rest of the cancellation rule before 1996. What's the circumstance which would be impermissibly retroactive? What would have to happen? I'd like the synodist Cruz. The synodist Cruz and me, something to remove a bill only on that. I don't think that's cancellation rule, so I'd argue in that sense. But even before we move to Land Grab analysis, we'd argue that you should follow the Fifth Circuit, which is in Heaven, British, and Zalas, and find that Congress explicitly and unambiguously intended it to apply interactively if you don't agree with the reasoning of Hirata, and find that is a retrospective application of the statute. That's not what the Fifth Circuit really held in Heaven. They talked about it being incongruous to apply differently in this context in the transitional rule, but discussing whether it's incongruous or not, that's a question of statutory construction. That's not a plain language analysis. Well, they found out in the plain language that intent was expressed by the transitional rule through a 9C5, and the fact that cancellation rule will stop time for itself had no temporal restrictions on it. It simply says that an offense when it's committed renders that person a ceases to recruit to New Year's presents. And transitional rule also, as amended by that car, said that the stop time will also explicitly apply to all suspension deportation cases pending at the time of the year. If you have that, congressional intent to have it pending at the time of the year, all those cases were stopped time rule to apply, and the stop time rule to apply to all cases acted after cancellation of the rule. I guess the Fifth Circuit's getting an offense incongruous to have a small pocket of cancellation cases where it simply wouldn't apply
. There was no vested right to cancellation before we actually didn't exist yet. And there was no new disability attached to his rights for cancellation rule, because you were never able to get it at 1995 at the time as conviction. Why isn't Fitch Loveter's concurrence there right to think about the government's ability to pre-termit cancellation of the application as based on a retroactive application of the stock time rule? That's to pre-arrere conduct. What the legal significance of that pre-arrere conduct depends on the new stock time rule in Arirah. Well, I would say in Land Grab, and I'd say just because it applies to paracomic is not make a law retro-respective. It has to impair the attached new disability. And that sense, I would continue to argue Hirata, which said there was no new disability or the rest of the cancellation rule before 1996. What's the circumstance which would be impermissibly retroactive? What would have to happen? I'd like the synodist Cruz. The synodist Cruz and me, something to remove a bill only on that. I don't think that's cancellation rule, so I'd argue in that sense. But even before we move to Land Grab analysis, we'd argue that you should follow the Fifth Circuit, which is in Heaven, British, and Zalas, and find that Congress explicitly and unambiguously intended it to apply interactively if you don't agree with the reasoning of Hirata, and find that is a retrospective application of the statute. That's not what the Fifth Circuit really held in Heaven. They talked about it being incongruous to apply differently in this context in the transitional rule, but discussing whether it's incongruous or not, that's a question of statutory construction. That's not a plain language analysis. Well, they found out in the plain language that intent was expressed by the transitional rule through a 9C5, and the fact that cancellation rule will stop time for itself had no temporal restrictions on it. It simply says that an offense when it's committed renders that person a ceases to recruit to New Year's presents. And transitional rule also, as amended by that car, said that the stop time will also explicitly apply to all suspension deportation cases pending at the time of the year. If you have that, congressional intent to have it pending at the time of the year, all those cases were stopped time rule to apply, and the stop time rule to apply to all cases acted after cancellation of the rule. I guess the Fifth Circuit's getting an offense incongruous to have a small pocket of cancellation cases where it simply wouldn't apply. You would need expressed the language of the contrary stating that there are these little instances where the stop time rule doesn't apply. But there's previous convictions for cancellation applications, because they made a very clear that they want to apply suspension deportation applications by the transitional rule. And they made it very clear that there's no temporal restriction and can't stop time rule itself. And therefore, incongruous as the court found to have this pocket of cases where the stop time rule didn't apply. It would make much sense. In fact, nine-sick are each same conclusion in Gonzales Garcia Ramirez. But they apply to the third trigger on the stop time rule, a 91-80-day rule. There's the notice of a previous trigger, criminal grounds trigger, a 91-80-day rule may found that the transitional rule, while the language of the stop time rule itself, should this express desire by Congress to have the stop time rule apply across the board, or that exception. There is a contract conclusion to notice crews about step one, but they may explain why it is different. They say that they acknowledge their practices in finding that Congress expressly wanted this transitional rule apply, all cases have had stop time rule apply, to one trigger. But then they said for some reason it didn't apply this other trigger. And they passed out the alliance interest of the alien of 212C, but that doesn't speak to Congress's intent. So we'd argue you should follow the Heaven-Bress Gonzalez if you don't follow Herado and find there is a retroactive fact that Congress explicitly intend this effect to happen. And under step two, with there was an unambiguous intent by Congress, you would find that over the early to find there's still nothing permissible retroactive effect, because nothing has changed for this petitioner. He was ineligible for relief and deporable in 1995. He is now ineligible for relief and deporable as a current misunderstanding. It's kind of like the, maybe the sonotus crews and the sincere rationale would be the only situations where you've accepted the plea. It's not a moral of a perpetuity, you're not in trouble here, you can still eligible for the 212C waiver and in sincere lawyers say, so everything's fine and then later, whoops, you're not. So maybe that's the way of looking at it
. You would need expressed the language of the contrary stating that there are these little instances where the stop time rule doesn't apply. But there's previous convictions for cancellation applications, because they made a very clear that they want to apply suspension deportation applications by the transitional rule. And they made it very clear that there's no temporal restriction and can't stop time rule itself. And therefore, incongruous as the court found to have this pocket of cases where the stop time rule didn't apply. It would make much sense. In fact, nine-sick are each same conclusion in Gonzales Garcia Ramirez. But they apply to the third trigger on the stop time rule, a 91-80-day rule. There's the notice of a previous trigger, criminal grounds trigger, a 91-80-day rule may found that the transitional rule, while the language of the stop time rule itself, should this express desire by Congress to have the stop time rule apply across the board, or that exception. There is a contract conclusion to notice crews about step one, but they may explain why it is different. They say that they acknowledge their practices in finding that Congress expressly wanted this transitional rule apply, all cases have had stop time rule apply, to one trigger. But then they said for some reason it didn't apply this other trigger. And they passed out the alliance interest of the alien of 212C, but that doesn't speak to Congress's intent. So we'd argue you should follow the Heaven-Bress Gonzalez if you don't follow Herado and find there is a retroactive fact that Congress explicitly intend this effect to happen. And under step two, with there was an unambiguous intent by Congress, you would find that over the early to find there's still nothing permissible retroactive effect, because nothing has changed for this petitioner. He was ineligible for relief and deporable in 1995. He is now ineligible for relief and deporable as a current misunderstanding. It's kind of like the, maybe the sonotus crews and the sincere rationale would be the only situations where you've accepted the plea. It's not a moral of a perpetuity, you're not in trouble here, you can still eligible for the 212C waiver and in sincere lawyers say, so everything's fine and then later, whoops, you're not. So maybe that's the way of looking at it. But going back to Vartilus, which was the same scenario, not the same scenario, but I mean, it just instructed the same seer because there in a while there was a right taken away by the year. He had a best to write to travel briefly outside the United States without being deemed applicant for admission because it was kind of a well-terpetued, pre-rear conviction. Afterwards, from court stated, this right was taken away, plucked away from that petitioner because of a re-rear. So there's a right that existed before and was taken away after. It's almost like you're not retroactively applying the stop time rule. It's that you're looking at the prior conviction and what it meant at the time and what it didn't mean and all three of those cases, that's the similarity. He had that whoops I sat with council and he said, you know, I could travel, you know, that's the law and then the law isn't that that. Yeah, the ability disability is new benefit created by Congress. And to new benefit, he's just simply not eligible for. I think that's the correct way to think about it. It's not retrospective in that sense because it's simply a new benefit and he has to comply with the requirements of that new benefit. Pre-conduct, post-conduct, that's just simply the requirements of the law. But your adversary would say that the change, the lost ability is that continuous accrual of those seven years and now retroactively there is a stop to the accrual of seven years. Time of the 2012 C though every means kept reverence and marvelous is that that took away a 2012 C right and that is same here. And perhaps there is retroactive was from court has found that has been in promise retroactive effect on people that were eligible for 2012 C. But again, it is urge to follow her out, which is this is cancellation. This is did not exist at the time. So it's purely a perspective. So you look at the you look at the moment and see what right he has as compared to what he might accrue in the future
. But going back to Vartilus, which was the same scenario, not the same scenario, but I mean, it just instructed the same seer because there in a while there was a right taken away by the year. He had a best to write to travel briefly outside the United States without being deemed applicant for admission because it was kind of a well-terpetued, pre-rear conviction. Afterwards, from court stated, this right was taken away, plucked away from that petitioner because of a re-rear. So there's a right that existed before and was taken away after. It's almost like you're not retroactively applying the stop time rule. It's that you're looking at the prior conviction and what it meant at the time and what it didn't mean and all three of those cases, that's the similarity. He had that whoops I sat with council and he said, you know, I could travel, you know, that's the law and then the law isn't that that. Yeah, the ability disability is new benefit created by Congress. And to new benefit, he's just simply not eligible for. I think that's the correct way to think about it. It's not retrospective in that sense because it's simply a new benefit and he has to comply with the requirements of that new benefit. Pre-conduct, post-conduct, that's just simply the requirements of the law. But your adversary would say that the change, the lost ability is that continuous accrual of those seven years and now retroactively there is a stop to the accrual of seven years. Time of the 2012 C though every means kept reverence and marvelous is that that took away a 2012 C right and that is same here. And perhaps there is retroactive was from court has found that has been in promise retroactive effect on people that were eligible for 2012 C. But again, it is urge to follow her out, which is this is cancellation. This is did not exist at the time. So it's purely a perspective. So you look at the you look at the moment and see what right he has as compared to what he might accrue in the future. Yeah, and I think Langert also states that these news determine future relief. They look at injunction or an injunction can provide the future. They say when it's in future or relief, that's perspective that doesn't implicate grounds of retroactivity. So 1995 this was future relief for him did not exist. So it's not a retrospective issue. Thank you. Sorry, just a couple quick questions. Is the government stop pressing the motion to dismiss for lack of jurisdiction? I believe that was referred to the mayor's panel. Yes, you could dismiss that. So it's your position of this case that we've been talking about for. I was I was well, because it doesn't hurt me. Because he was a little bit wrong. And that traditional bar applies. We tend to try and move business cases on early basis. Sorry, I'm not sure. You answer the question. So it's not a question of law presented for. Not a notorious question of law. And is it the case that the positioner is not ineligible for cancellation of removal on any other grounds? In other words, the narcotics offense here was not an aggravated felony? No, it's not aggravated felony, but that immigration just never reached other grounds
. Yeah, and I think Langert also states that these news determine future relief. They look at injunction or an injunction can provide the future. They say when it's in future or relief, that's perspective that doesn't implicate grounds of retroactivity. So 1995 this was future relief for him did not exist. So it's not a retrospective issue. Thank you. Sorry, just a couple quick questions. Is the government stop pressing the motion to dismiss for lack of jurisdiction? I believe that was referred to the mayor's panel. Yes, you could dismiss that. So it's your position of this case that we've been talking about for. I was I was well, because it doesn't hurt me. Because he was a little bit wrong. And that traditional bar applies. We tend to try and move business cases on early basis. Sorry, I'm not sure. You answer the question. So it's not a question of law presented for. Not a notorious question of law. And is it the case that the positioner is not ineligible for cancellation of removal on any other grounds? In other words, the narcotics offense here was not an aggravated felony? No, it's not aggravated felony, but that immigration just never reached other grounds. It could be good moral character issues because it was a very extensive criminal record. And so there would need to be a re-visitation to the other eligible of the grounds if there was a remit. Thank you. Thank you. Mr. Katana, we'll hear from your panel. Councillor Gouvernment continues to allege and characterize his argument in the former vested rights. You know, he talks about the ability to travel as a vested right. There is no statutory to find right to travel under the INA. It's its ability. And so I thought it has to be. At the moment, after his conviction, he had the right to travel. He did have that right to travel. At that moment. And later, it was taken away. Whereas in your situation, you don't have the right for the 212C waiver. You have the right to wait. Correct. But it's not that I'm not right
. It could be good moral character issues because it was a very extensive criminal record. And so there would need to be a re-visitation to the other eligible of the grounds if there was a remit. Thank you. Thank you. Mr. Katana, we'll hear from your panel. Councillor Gouvernment continues to allege and characterize his argument in the former vested rights. You know, he talks about the ability to travel as a vested right. There is no statutory to find right to travel under the INA. It's its ability. And so I thought it has to be. At the moment, after his conviction, he had the right to travel. He did have that right to travel. At that moment. And later, it was taken away. Whereas in your situation, you don't have the right for the 212C waiver. You have the right to wait. Correct. But it's not that I'm not right. It's a right that everyone else has as defined, just having a lawful status. But it's not a right to define under the INA. And the law's court characterizes it as an ability or a disability, you know, a ability to travel. But he has that ability right then. Your client wouldn't have the ability until seven years had passed. Then he had the ability to apply for the 212C. Correct. Correct. But he had the ability to continue accruing continuous presence, which the argument would have to be different. Your argument would have to be that the accrual itself is the disability. And it seems that the question is, at a point in time, you had a right and at a later point in time, you didn't have a right. And from that, we now discuss new disability as the key. And I thought the judges' point was, you're unable to identify a new disability. What's the new disability? They didn't have a right to a 212C at that point in time. All he had at that point in time was an ability to accrue time. If you didn't have the right then, then what's the new disability, you're not creating a new disability? That's the problem as we discuss this. I understand. I understand. And it does take a particular view, which, you know, again, we're trying to spouse in that, you know, someone who, you know, is deciding to for a low, you know, trial on, you know, potential criminal ground, you know, has the, it couldn't be part of the capitalist or the calculation determining whether or not to accept a plea or to not knowing that you had, you know, not foreclosed from particular relief if you would be putting deportation proceedings
. It's a right that everyone else has as defined, just having a lawful status. But it's not a right to define under the INA. And the law's court characterizes it as an ability or a disability, you know, a ability to travel. But he has that ability right then. Your client wouldn't have the ability until seven years had passed. Then he had the ability to apply for the 212C. Correct. Correct. But he had the ability to continue accruing continuous presence, which the argument would have to be different. Your argument would have to be that the accrual itself is the disability. And it seems that the question is, at a point in time, you had a right and at a later point in time, you didn't have a right. And from that, we now discuss new disability as the key. And I thought the judges' point was, you're unable to identify a new disability. What's the new disability? They didn't have a right to a 212C at that point in time. All he had at that point in time was an ability to accrue time. If you didn't have the right then, then what's the new disability, you're not creating a new disability? That's the problem as we discuss this. I understand. I understand. And it does take a particular view, which, you know, again, we're trying to spouse in that, you know, someone who, you know, is deciding to for a low, you know, trial on, you know, potential criminal ground, you know, has the, it couldn't be part of the capitalist or the calculation determining whether or not to accept a plea or to not knowing that you had, you know, not foreclosed from particular relief if you would be putting deportation proceedings. So that option was there, was not, it was not foreclosed by accepting a plea. But the action that you're talking about is the ability to accrue time. Correct. So that's the disability you want us to find? Yes. Okay. All right. Anything else? Councilor, do you want to just sum up? Yeah. One last point I did want to make is the argument that we didn't discuss too much with regard to whether or not it concurrent to 12c and cancellation application could be made concurrently. Really, there are two circuit opinions on this and the eighth and ninth circuits. And if you look into the reasoning of those opinions, you know, we were in that they are not well flushed out to say the least and they both go against you. I'm sorry? They both go against you. Yes, they do. In one, the court makes a determination that in light of congressional intent, those two lawyers should not be permissible together, yet it does not go into even a sentence where it analyzes what the congressional intent was. The other court reports to argue that the statute was very clear in that it said that some of us were closed from applying for the use of the court previously in the regulatory provision and the statutory provision makes a clear that the section that dealt with the applying for an agreement. Essentially two cancellation waivers, I'm sorry, I lost my train of thought here. Our argument would be that the statutory provision is in the past tense and that that past tense has to be given some meaning. And if you would apply for 12c and cancellation concurrently, the grant of the 12c concurrently would not be in the past tense and that's what's not impolissible. And we've heard a decision that has been found that a concurrent waiver is not permissible, has merely cited these two cases with very little reasoning and the board has not given its own reasoning. And in order for a court to essentially give a reference to a statutory interpretation, there has to be some reasoning there and there is no reasoning that has been elaborated on board
. All right, and that's covered as well in your brief. Yes, it is. All right, thank you. Case as well. We'll take an under advisement as to correct recess for. Thank you