Eid versus Thompson, number 12, Dye, 4271, Mr. Mosley. And, is it Dalber? Dalber, okay. Welcome back. Thank you, Your Honor. It's a pleasure to be back. May I please the court, I'm Thomas Mosley Council for the appellance in this case. I'd like to reserve three minutes for a reputal. That's fine. I want to address three issues, a minimum, timely retraction, and what I would call the specific intent requirement of 204C1, the basis for what is an issue in this case. Turning first to the minimum, as we deal with a time-honored, venerable rule of statutory construction against which I submit in the Supreme Court has held all statues, obviously, including the Immigration Act are enacted. And if there was... The problem I have here is that when I look at the text of the statute 1154C or 2004C, which is the same thing, no petition shall be approved if one, the alien, I'm going to skip over, has sought to be accorded. It goes on a preference status as the spouse of a citizen by reason of a marriage for the purpose of evading the immigration laws. And when I look at that, and I realize this is in the civil context we have here, it's not removal. Mr. Ead got his I-130 when he went through the first.
.. When he said that he was married to Miss Pickett. And then he was going for his I-145. He was going for his adjustment interview. The I-130 merely allows you to make the application for adjustment. So he goes that and it's discovered that, hey, this looks like a sham. And he says, right, yeah, they talk and they say, yeah, it is. And my guess is they were advised to withdraw it or told to this could cause a problem. And so they withdrew it. But when you look at the statute, he sought to be accorded a preference status as the spouse of a citizen for the purpose of evading the immigration laws. I think Judge Ambo, we have fundamentally two points here with respect to that. Okay. With respect to day-minimous and for the reasons that we've gone into and I'll go into a minute. The violation here is so trivial. I mean, that's what, that's what, if indeed it is a violation, the violation is so trivial given the fact that there was, they did this naively in the belief that formal marriage merely getting married was sufficient. They had no, and the record is clear, no intent to violate the law. But doesn't the violation go through the very heart of the visa ban section? No, you're making the diminimous argument. And it seems to me that this is the heart of the section. Fraudulent or sham marriage for purposes of avoiding immigration laws, it's a bar
. Well, Judge Fisher, first of all, with respect to that, what we have here on the diminimous part of the argument is we have no intention to violate the law. The statute says that's another part, that's another part of the argument. But to make the point that this is a day-minimous violation under that concept, I think, is probably not your strongest point. All right. In the spirit of piling on. All right. Let's look at what I'm concerned about. Maybe my colleagues are, but I agree with them. I'm not with you on the day-minimous. What about the conflation here between the intent requirement of the statute and the sham marriage? I mean, and what fascinates me about this case is there's some subtlety, some subtle differences between what the IJ said and what the BIA said. Do you address? Well, I think what's important here, and we have to address the BIA decision as the final agency action. And I think the subtlety here, Judge Hardiman, that I see, is that the statute doesn't say for purposes of obtaining an immigration benefit. The statute, using language, very similar to what I would consider a specific intent crime. The statute says for the purpose of evading. And in this case, the Board of Immigration Appeals accepted that they did not act with intention, with an intent to violate the law. I think it's a very fundamental matter, very similar. All right. Before we get there, though, as I read the IJ's opinion, the IJ said, look, on these facts, I find that there was a purpose of evading the immigration law when they entered into a sham marriage for the purpose of obtaining this benefit to which they weren't entitled absent the sham marriage. But on appeal, and it's not, by the way, an immigration judge's decision
. I'm sorry. I meant to say U.S. CIS. District Agutacations Office of the Decision on appeal, what happened there to the Board of Immigration Appeals? The Board of Immigration Appeals said, look, we accept the fact that you didn't have an intention to violate the law and the government doesn't dispute that. But nevertheless, we're going to say that that's a purpose that we've established a purpose to evade. And I submit. So if the U.S. CIS had written the IA's opinion, then you're in trouble. I might be in more difficulty. Which raises a really difficult, perhaps, novel, Chenery issue, doesn't it? Your brief at page 21, you say that neither the U.S. CIS nor the BIA invoke this provision under Chenery cannot be used. That seems to suggest that as long as U.S. CIS cited the right standard that there's not a Chenery problem. Why? And my question to you is, we all know enough about Chenery that we don't affirm on other grounds when the agency doesn't articulate the reason. We do that all the time, or periodically, with district courts
. But my question is, how does the Chenery doctrine interact when you've got two levels of agency review here, like U.S. CIS and BIA, as opposed to, for example, reviewing just the Social Security appeal or something like that? Well, I think here we deal with the other fundamental provision of the APA that you only review final agency action. And the only final agency action, in this case, is the Board of Immigration Appeals decision. And that decision specifically accepts the fact that there was no intention of violating the law. In other words, we don't have the specific intent that's required under this statute. I mean, Congress knew how to enact statutes, where it said, for example, making a false statement for the purpose of obtaining an immigration benefit. But the Drakonean penalty that's imposed by this statute, I submit, is far more, is limited by rather different language, the language that says there has to be a purpose to evade the immigration law. I think the record is clear that these naive foolish folks. But U.S. CIS so found. It's so found. So should we vacate and remand for the idle exercise, should we just tell the BIA look? You did not make a finding of intent under the statute. Your ruling is invalid. And by the way, U.S. CIS did make the final decision. I think the U
.S. CIS finding, for which I obviously have some procedural due process issues, but the U.S. CIS finding Judge Hardiman, as I read it, merely equated, merely equated, marrying for the purpose of obtaining an immigration benefit with a purpose to evade. And as well. Which on these facts seems to work. It doesn't work on other facts. For example, people may enter into a sham marriage in order to get health care in order to get the schooling or nutrition or housing benefits. There are a myriad reasons why an undocumented alien might enter into a sham marriage. But here the factual record was pretty clear that this sham marriage was precisely for the purpose of allowing him to continue to work for this company, remain in the country when he had no right to remain in the country. Well, actually, that's not the case. What's ironic here, Judge Hardiman is he had an H1V visa. He had an H1V visa. This was a lot. So it didn't give him the benefit of staying here. It didn't give him employment. I'll give you a vision. He already had that. What do they wanted to make it permanent? Right
. But he was a valued employee and they wanted to make this renewal. That was renewal. That visa, was it not? Yes. I mean, you see, this wasn't treated even as an invasion, if you will, by initially. But when they went to the interview and they voluntarily withdrew, when they voluntarily withdrew everything, the agency said, you know, find this renewal, your H1V and keep going. So the agency didn't treat this to the level of evasion. Again, we have a very severe penalty here, which is bottom, not upon doing something for the purpose of an immigration benefit. It's for the purpose of evasion. And evasion, purpose and evasion is, I submit, similar to this Court's position in Pia, on Banc, on Pierre, perhaps like it used to be an on-banc, decision in my favor at some point. But in any event, but it really does require a knowledge and intention. And these poor folks, and the government doesn't dispute this, acted naively without a specific intent to violate the law. Finally, I want to make one other point, because it isn't a sense of Chennery point on timely retraction. When Judge Martini issued his decision here, when Judge Martini issued his decision, he thought he was engaging in day-no-go review. So he addressed the issue of timely retraction, even though the board itself had not addressed that. Had not addressed the issue of timely retraction at the argument that we make with respect to cost it. So I would urge, and even Judge Martini even cited a section of tool for CM, which the night of the board and other USCIS, rely. So I would suggest that at a very minimum, this case, because under Chennery, there wasn't so-called day-no-go review. He had, and the agency didn't address that point. At the very least, the case should be remanded to the agency to address the issue of timely retraction
. If Mr. Ead doesn't win on this issue, I guess the removal proceedings then kick back and come back into play. What other options does he have to try to avoid removal? Is he eligible for waiver of removal, for example? Well, a very brilliant jurist once suggested that a new period of time for cancellation of removal might restart. But unfortunately, in his case, the filing of the notice to appear has cut that time off in the law in the circuit and the Board of Integration Appeals is that it would not restart him and the Iraners concurrence. And Okeke doesn't, has been rejected in that regard. The only argument left to him at that point is the exceptionally difficult one. That commencing removal proceedings against him was on-cons, was a fifth amendment violation, plus it was down on the basis of national origin, being from the Middle East, though ironically 11 East Christians. So this really is, for him, for his wife and child, the only serious form of relief available. Thank you very much. Mr. Doppler. May I please the Court, Kirsten Doppler, on behalf of the government. First I'd like to address the contention that the government doesn't dispute that the Iides, excuse me, Mr. Iide and his former wife acted naively. That's not- I think what they mentioned is, if you on-pay 17 of your brief, you said that you look, you agree they may have acted naively without the intent to commit a crime. Perfect. And so the point here is that I think one of the key points for Mr. Mosley is he's trying to say that there has to be an intent element in 1154C because of the use of the word of your purpose. If I do something with a purpose that means I do it with the intent or the intention of whatever the result I'm seeking
. And if the implication of what you said on page 17 was that they really didn't have the intent, I realize you said intent to commit a crime. Perfect. So you're on it. I just wanted to make sure that was clear. Obviously we argued before this Court that they were not as naively- But come back to his point. Absolutely. Obviously, the I's argument is that intent is required given the purpose to evade immigration laws, language in section 1154C. But courts have established that the evasion element there and that the purpose to evade element is satisfied where the alien intended to enter into a marriage for immigration benefits only as opposed to intending to enter into a marriage to establish a life together as husband and wife. Which should the government be required to prove intent to evade? Your Honor, it's the aliens burden at all times in a visa application to establish his, excuse me, it's the petitioners burden to establish the beneficiaries eligibility by a preponderance of the evidence. And that's why this Court, among others, has held that- It's a pre-affection requirement or not. We can decide, but he's saying that he did not enter into the first marriage, the Middle East sham marriage, for the purpose of evading immigration laws. Right. Under Court's reasoning, he did. And that's because Mr. I entered into his first marriage with the intent, with the purpose of obtaining immigration benefits. That was the only reason he married his former wife who was also his employer after- So they married because they came to the conclusion, if we're married, I can stay here as a legal permanent resident. Correct, Your Honor. In doing that, did they have to conclude, G's, revilate in the immigration laws? They don't admit that they needed to, and our argument is that the purpose to enter into a marriage with the sole intent of gaining immigration benefits, that is gaining a green card is sufficient. That's not what the statute refers to
. That's not what the statute refers to. That's not what the statute refers to. That's not what the statute refers to. That's not what the statute refers to. That's not what the statute refers to. That's not what the statute refers to. During this court, albeit in on published decisions, has explained that 1154C bars in marriage where the previous marriage was entered into, quote, unquote, for immigration purposes only. We were not found by those decisions in the United States. No, Your Honor, you're not. But this isn't the only court to have held that. The BIA has also explained that the question of whether somebody has entered into a marriage for the purpose of evading the immigration laws depends on whether the marriage was for the sole purpose of obtaining immigration benefits. All right, and let's talk about the findings though. USCIS, site for us where USCIS made that finding. I get the courts indulgence. No problem. No problem. I can't be concerned about the time it's taking you because I couldn't find it quickly. That's why I put the onus on use. But I think it's important to see where the finding is
. I believe it's in there. I believe it is, too. I believe it's on page A139 of the record, which is page three of the decision, the second paragraph. Okay, read it for us. Contrary to attorney mostly's contention, the record does establish an attempt by the beneficiary to evade the immigration laws. The following is a quote from the beneficiary's sworn statement provided to this service on February 20, 2001. I was looking at my options to stay in the United States and asked Carolyn to marry me and file immigration paperwork. In her own sworn statement, Ms. Pickett also confirms what the beneficiary said. Elias wanted to remain and work in the United States, and I wanted to help him out. All right, so there we have a specific finding by USCIS. Yes, sir. I'm going to ask you a question. And what about the BIA? The BIA on the last page of this decision found that the petitioner argues on appeal that any violation of the law is the BIA on the last page of the decision. And the BIA on the last page of this decision found that the BIA on the last page of the decision was the same as the BIA on the last page of the decision. So they just made a conclusion that it was a sham marriage, but they didn't tie that up with an intent or purpose to evade immigration laws in the way that USCIS tied those together. Well, they did go on to explain that in any event there are admissions that their marriage was entered into for the sole purpose of procuring the beneficiary's lawful status in the United States. Our sufficient basis under matter of topic to find the beneficiary's subject to the 204C bar. All right. So then your argument would seem to be that sort of through the back door of the BIA made a holding that there was an intent to a purpose to evade the laws when it had converted to the prior standard that was common in BIA decisions that if you seek to obtain a immigration benefit that equates to purpose to evade immigration laws. Exactly. Is that your argument? Exactly. Yes. You know, the sixth circuit and the eighth circuit have also held that that's the appropriate standard, of course, in addition to the BIA. Okay. And that standard makes sense for a couple of reasons. Number one, given the purpose that section 1154 and in particular subsection C is intended to serve in 1986 when Congress amended the INA to tighten the procedures regarding marriage fraud. It did so because it recognized that marriage fraud was a real problem. It was a big problem. Let me just go back to Judge, Judge Fisher's point. And I guess the sum of standard hard one picked up on it. At the time of the marriage to pick it, Mr. Eater, I eat or I eat or I've been saying I don't know. He's actually eat. Okay. Mr. Ead. He had a valid visa
. So then your argument would seem to be that sort of through the back door of the BIA made a holding that there was an intent to a purpose to evade the laws when it had converted to the prior standard that was common in BIA decisions that if you seek to obtain a immigration benefit that equates to purpose to evade immigration laws. Exactly. Is that your argument? Exactly. Yes. You know, the sixth circuit and the eighth circuit have also held that that's the appropriate standard, of course, in addition to the BIA. Okay. And that standard makes sense for a couple of reasons. Number one, given the purpose that section 1154 and in particular subsection C is intended to serve in 1986 when Congress amended the INA to tighten the procedures regarding marriage fraud. It did so because it recognized that marriage fraud was a real problem. It was a big problem. Let me just go back to Judge, Judge Fisher's point. And I guess the sum of standard hard one picked up on it. At the time of the marriage to pick it, Mr. Eater, I eat or I eat or I've been saying I don't know. He's actually eat. Okay. Mr. Ead. He had a valid visa. He did your honor. So he was not in danger of removal at that time. Correct. So was he really attempting at that point to evade immigration laws? By his own emission. We're trying to get another Benny, so to speak, a benefit. But I don't know. I mean, it's the more you dig, he didn't come here illegally. And he wasn't in imminent danger of being, you know, having his time right out to be in this country. That's true, you're on a, but if this court creates that kind of exception and says, now, you know, if you're not in imminent danger of being removed, that applying for immigration benefits through marriage that's admittedly a sham, does not trigger the rule. No, but the point that Judge Fisher was making is he's trying to get an additional benefit. But is he trying to evade immigration laws for the purpose of not being removed? Under the case law, your honor. Yes, he is. And that interpretation makes sense because if this court said that he was not intending to evade the immigration laws, it creates a rather large loophole that does much of 1154C. In that case, any alien could marry a US citizen whether they're in removal proceedings or not, apply for either a visa or a green card through that citizen. And if they're caught either then or down the road, they could come back and say, I didn't know that what I was doing was unlawful. I thought that my friend was doing me a favor and helping me out. I thought everything was on the up and up. And that really creates a rather largely poll for 11. I'm not going to take it back
. He did your honor. So he was not in danger of removal at that time. Correct. So was he really attempting at that point to evade immigration laws? By his own emission. We're trying to get another Benny, so to speak, a benefit. But I don't know. I mean, it's the more you dig, he didn't come here illegally. And he wasn't in imminent danger of being, you know, having his time right out to be in this country. That's true, you're on a, but if this court creates that kind of exception and says, now, you know, if you're not in imminent danger of being removed, that applying for immigration benefits through marriage that's admittedly a sham, does not trigger the rule. No, but the point that Judge Fisher was making is he's trying to get an additional benefit. But is he trying to evade immigration laws for the purpose of not being removed? Under the case law, your honor. Yes, he is. And that interpretation makes sense because if this court said that he was not intending to evade the immigration laws, it creates a rather large loophole that does much of 1154C. In that case, any alien could marry a US citizen whether they're in removal proceedings or not, apply for either a visa or a green card through that citizen. And if they're caught either then or down the road, they could come back and say, I didn't know that what I was doing was unlawful. I thought that my friend was doing me a favor and helping me out. I thought everything was on the up and up. And that really creates a rather largely poll for 11. I'm not going to take it back. Do you now acknowledge that the statute in question requires specific intent to evade? No, your honor. We believe that we believe that the intent to evade is the intent to enter into a marriage for immigration. So you do not agree that specific intent is needed to devilate the immigration laws. No, your honor. We believe that the intent at issue is solely the intent to enter into a marriage for immigration purposes. And the BIA in their decision, they relied on the matter of, they cited to the matter of topic. They did. 1990 decision, which likewise didn't specifically, they found there was no need to find a specific intent. Okay. Now, if we find that the statute does require specific intent, does the record support that violation? The record does support it in the sense that neither Mr. Ead nor his former wife was naive and entering into their marriage. Well, it supports it in that the agency reasonably concluded that Mr. Ead's former wife. Not the BIA, USCIS. The BIA was not clear on that issue. So why don't you have a Chenery problem there? Yeah. We'd have a Chenery problem to do that in my next question. Your honor, there's no Chenery problem because I mean, what this corporate essentially need to do is, is remand for the BIA to enter a sentence. That says that we like the CIS, which which we have affirmed, don't believe that the Eads Mr
. Do you now acknowledge that the statute in question requires specific intent to evade? No, your honor. We believe that we believe that the intent to evade is the intent to enter into a marriage for immigration. So you do not agree that specific intent is needed to devilate the immigration laws. No, your honor. We believe that the intent at issue is solely the intent to enter into a marriage for immigration purposes. And the BIA in their decision, they relied on the matter of, they cited to the matter of topic. They did. 1990 decision, which likewise didn't specifically, they found there was no need to find a specific intent. Okay. Now, if we find that the statute does require specific intent, does the record support that violation? The record does support it in the sense that neither Mr. Ead nor his former wife was naive and entering into their marriage. Well, it supports it in that the agency reasonably concluded that Mr. Ead's former wife. Not the BIA, USCIS. The BIA was not clear on that issue. So why don't you have a Chenery problem there? Yeah. We'd have a Chenery problem to do that in my next question. Your honor, there's no Chenery problem because I mean, what this corporate essentially need to do is, is remand for the BIA to enter a sentence. That says that we like the CIS, which which we have affirmed, don't believe that the Eads Mr. Ead and his former wife were as naive as they claim. And as CIS explained, that is supported by the record because Mr. Ead's former wife owned and managed the insurance agency that he worked for. And it's successfully figured out how to apply for the H1B visa on Mr. Ead's behalf and to then renew it when it became, when it when it was about to lapse. But we can also conclude that the contrary that the record does not support specific intent. Your honor, I don't believe that this court that the record would support a finding that the agency's determination of that the Eads did in fact enter into a marriage, knowing that it was a violation of the immigration laws or knowing that it was intended to confer immigration benefits is not supported by the record. Now that this court's review, despite the district court's decision, is it's it's deferential under the administrative procedures act. I know the district court got that wrong, but this court can't disturb the agency's finding unless it's arbitrary and capricious. And it's simply not in this case. Or a violation or a misinterpretation of law. True, Your Honor. But there's no law that supports the Eads contention that Section 1154C requires something more. They have failed to point to any law whatsoever that does so. In fact, all the courts have looked at this issue, including this circuit and unpolished decisions, the sixth circuit, the eighth circuit and the BIA have all decided that the intent is, but the government is saying it is, that it's just the intent to enter into a marriage for immigration purposes. For immigration purposes only. So you can see what's to evade. The language and statute is evade for the purpose of evading with the intent to evade immigration laws. Our argument is that what that means as courts have interpreted is that that intent to evade means with the intent to obtain immigration benefits
. Ead and his former wife were as naive as they claim. And as CIS explained, that is supported by the record because Mr. Ead's former wife owned and managed the insurance agency that he worked for. And it's successfully figured out how to apply for the H1B visa on Mr. Ead's behalf and to then renew it when it became, when it when it was about to lapse. But we can also conclude that the contrary that the record does not support specific intent. Your honor, I don't believe that this court that the record would support a finding that the agency's determination of that the Eads did in fact enter into a marriage, knowing that it was a violation of the immigration laws or knowing that it was intended to confer immigration benefits is not supported by the record. Now that this court's review, despite the district court's decision, is it's it's deferential under the administrative procedures act. I know the district court got that wrong, but this court can't disturb the agency's finding unless it's arbitrary and capricious. And it's simply not in this case. Or a violation or a misinterpretation of law. True, Your Honor. But there's no law that supports the Eads contention that Section 1154C requires something more. They have failed to point to any law whatsoever that does so. In fact, all the courts have looked at this issue, including this circuit and unpolished decisions, the sixth circuit, the eighth circuit and the BIA have all decided that the intent is, but the government is saying it is, that it's just the intent to enter into a marriage for immigration purposes. For immigration purposes only. So you can see what's to evade. The language and statute is evade for the purpose of evading with the intent to evade immigration laws. Our argument is that what that means as courts have interpreted is that that intent to evade means with the intent to obtain immigration benefits. And the reason that that's what that means is because. So evading the law isn't just avoiding criminal prosecution. It can mean affirmatively accessing legal benefits to which one is not entitled. Correct. And the reason that that's a reasonable interpretation is because Congress acknowledged in 1986 that Spalzel visa petitions allow aliens to jump in line. They don't have to wait for visas that they may otherwise have to wait years and years for. And they may qualify for visa that they may otherwise not be eligible for. So in addressing that concern, Congress amended Section C, Subcheck Subsection C, to make it a much more stringent requirement to make it a far, make it cast a far wider net. So you can see then would you not that if the sham marriages to obtain healthcare benefits or housing benefits of food, et cetera, then that's not a violative of the statute. I believe that that would not violate Section 1154C. I don't have case on that. I'm not positive. Now my only hesitation saying that is that, of course, another consideration is that the BIA looks at is whether the intent was to enter into a bona fide marriage. That is to establish a life together as husband and wife. If you enter into the marriage for the purpose of getting, for example, health benefits, which have nothing to do with immigration, then clearly you're not in a lim 54. And an 1154C, right? The target of 1154C is immigration fraud as it relates to married couples, right? It's not healthcare fraud. And the like Congress is very specific is that as to that, it even explained that 1154C. Can I ask a practical question? Absolutely. Can you shed any light on why the agency would spend the resources of USCIS to pursue a case like this one when the man entered the country legally and has a family here when there are so many thousands or millions of undocumented aliens who didn't enter the country legally and don't have families here? Absolutely
. And the reason that that's what that means is because. So evading the law isn't just avoiding criminal prosecution. It can mean affirmatively accessing legal benefits to which one is not entitled. Correct. And the reason that that's a reasonable interpretation is because Congress acknowledged in 1986 that Spalzel visa petitions allow aliens to jump in line. They don't have to wait for visas that they may otherwise have to wait years and years for. And they may qualify for visa that they may otherwise not be eligible for. So in addressing that concern, Congress amended Section C, Subcheck Subsection C, to make it a much more stringent requirement to make it a far, make it cast a far wider net. So you can see then would you not that if the sham marriages to obtain healthcare benefits or housing benefits of food, et cetera, then that's not a violative of the statute. I believe that that would not violate Section 1154C. I don't have case on that. I'm not positive. Now my only hesitation saying that is that, of course, another consideration is that the BIA looks at is whether the intent was to enter into a bona fide marriage. That is to establish a life together as husband and wife. If you enter into the marriage for the purpose of getting, for example, health benefits, which have nothing to do with immigration, then clearly you're not in a lim 54. And an 1154C, right? The target of 1154C is immigration fraud as it relates to married couples, right? It's not healthcare fraud. And the like Congress is very specific is that as to that, it even explained that 1154C. Can I ask a practical question? Absolutely. Can you shed any light on why the agency would spend the resources of USCIS to pursue a case like this one when the man entered the country legally and has a family here when there are so many thousands or millions of undocumented aliens who didn't enter the country legally and don't have families here? Absolutely. And, you know, I was mindful that this court may be concerned with that issue. It certainly occurred to me. But I think the issue here is that CIS is bound by the will of Congress here and Congress has not given CIS any discretion with respect to how it can approve or deny under section 1154C. In fact, Congress mandates that USCIS deny visa petitions for aliens like Mr. Ead. USCIS simply has no discretion to say, you know, given weighing all the equities in this case, this is not a case that we that we want to litigate. It has no choice. The only discretion that may come into play is with respect to Mr. Ead's removal proceedings, which of course aren't an issue before this court. He's not yet subject to removal. If somebody made the decision, we're not going to pursue this. I mean, it'll never be known. Respectfully, your Honorary CIS is affirmatively obligated to follow Congress's will. And it can't... Congress's will is that you have the primary will of Congress is that if people are undocumented aliens, they're here illegally. They shouldn't be here unless there is some exception written to the law that allows them to be here. Here's a person who came here illegally and entered into an admitted right away that he entered into a marriage for the seemingly the purpose of getting an I-130
. And, you know, I was mindful that this court may be concerned with that issue. It certainly occurred to me. But I think the issue here is that CIS is bound by the will of Congress here and Congress has not given CIS any discretion with respect to how it can approve or deny under section 1154C. In fact, Congress mandates that USCIS deny visa petitions for aliens like Mr. Ead. USCIS simply has no discretion to say, you know, given weighing all the equities in this case, this is not a case that we that we want to litigate. It has no choice. The only discretion that may come into play is with respect to Mr. Ead's removal proceedings, which of course aren't an issue before this court. He's not yet subject to removal. If somebody made the decision, we're not going to pursue this. I mean, it'll never be known. Respectfully, your Honorary CIS is affirmatively obligated to follow Congress's will. And it can't... Congress's will is that you have the primary will of Congress is that if people are undocumented aliens, they're here illegally. They shouldn't be here unless there is some exception written to the law that allows them to be here. Here's a person who came here illegally and entered into an admitted right away that he entered into a marriage for the seemingly the purpose of getting an I-130. Are you sure that that's Congress is saying that in this circumstance, you must, absolutely must attempt to in this gray area, try to have this person put into a position where ultimately, when further proceedings happen, he will be removed. Particularly in light of BIA case law on the issue, yes, your Honorary CIS is bound. Now, Congress, of course, as it always does, remains free to create a statutory exception to Section 1154C. If it wants the agency to take into account certain factors, such as U.S. citizen children, the fact that the alien beneficiary... But as Mr. Mosley said in this case, it looks like this is the best shot. I mean, he's not because of timing concerns, he's not eligible for cancellation of removal. I'm not entirely sure whether he's eligible for cancellation of removal, or clearly that's not the issue before this Court, but Mr. Eads, in particular, his challenge appears to be that his ultimate removal is really what is the ultimate harm here. That's what he stresses is his important liberty interest and what is causing the utmost harm to his family, and that's simply not the issue before this Court. CIS is bound under BIA law and under the statute to deny Ms. Packard Eads' spousal petition, because Mr. Eid attempted to gain immigration status through a marriage he admits was a sham. He admits was entered into so that he could apply for and receive a green card. All right
. Are you sure that that's Congress is saying that in this circumstance, you must, absolutely must attempt to in this gray area, try to have this person put into a position where ultimately, when further proceedings happen, he will be removed. Particularly in light of BIA case law on the issue, yes, your Honorary CIS is bound. Now, Congress, of course, as it always does, remains free to create a statutory exception to Section 1154C. If it wants the agency to take into account certain factors, such as U.S. citizen children, the fact that the alien beneficiary... But as Mr. Mosley said in this case, it looks like this is the best shot. I mean, he's not because of timing concerns, he's not eligible for cancellation of removal. I'm not entirely sure whether he's eligible for cancellation of removal, or clearly that's not the issue before this Court, but Mr. Eads, in particular, his challenge appears to be that his ultimate removal is really what is the ultimate harm here. That's what he stresses is his important liberty interest and what is causing the utmost harm to his family, and that's simply not the issue before this Court. CIS is bound under BIA law and under the statute to deny Ms. Packard Eads' spousal petition, because Mr. Eid attempted to gain immigration status through a marriage he admits was a sham. He admits was entered into so that he could apply for and receive a green card. All right. Thank you very much. Thank you. Mr. Mosley, back up. Just very briefly, if Congress wanted to sweep as broadly as the government urged, they had a statutory model, 212, 11, 8, U.S., C.11, 82, A.6.C.1, a false statement for the purpose of obtaining immigration benefit for the purpose of obtaining an immigration benefit. But they didn't do that. All right. But the agency has, from your perspective, watered down the statutory standards somewhat, and don't we owe that agency a decision or, you know, case law, deference under Chevron? Well, I don't recall the government didn't cite Chevron, but I don't think we do in this case because of the plain language. We have the plain language of the statute and the fundamental analysis you deal with the plain meaning of words. And the word here is for the purpose, for the purpose of evasion. It's not for the purpose of obtaining an immigration benefit. The purpose of evasion under certainly following from Pierre and the Supreme Court's decision in the criminal side on Bailey, it's a specific intent crime. It's not just that they entered into this marriage for purpose of getting a green card
. Thank you very much. Thank you. Mr. Mosley, back up. Just very briefly, if Congress wanted to sweep as broadly as the government urged, they had a statutory model, 212, 11, 8, U.S., C.11, 82, A.6.C.1, a false statement for the purpose of obtaining immigration benefit for the purpose of obtaining an immigration benefit. But they didn't do that. All right. But the agency has, from your perspective, watered down the statutory standards somewhat, and don't we owe that agency a decision or, you know, case law, deference under Chevron? Well, I don't recall the government didn't cite Chevron, but I don't think we do in this case because of the plain language. We have the plain language of the statute and the fundamental analysis you deal with the plain meaning of words. And the word here is for the purpose, for the purpose of evasion. It's not for the purpose of obtaining an immigration benefit. The purpose of evasion under certainly following from Pierre and the Supreme Court's decision in the criminal side on Bailey, it's a specific intent crime. It's not just that they entered into this marriage for purpose of getting a green card. They had to do that with the knowledge and intent that they were violating the law. And certainly the BIA finding, the BIA decision has no finding that they acted intentionally. Indeed, the BIA says, assumes that they have to force the crime. What? Is 1154 C a crime? No, it's not a crime. It'll be important. Criminalized in 8 US, it's similarly criminalized in identical language in 8 US, C, 1325, which would make it a crime. And indeed, I would even perhaps, the U.S. CIS decision never, never specifically finds that they knew that they were violating the law. I mean, they say that the U.S. CIS decision says evade has been established, but what it lacks is a specific finding that they were violated, that they knew that they were violating the law. And for this kind of draconian penalty to apply, I submit that it has to be shown that they acted intentionally with the knowledge that they were violating the law because it's a specific intent crime. It's contrary to the other circuits, though. Well, the other circuits have never dealt with this specific, have never dealt as I see with those decisions, with respect to this, with respect to the specific issue and certainly did not address, as Bayley did not address, it didn't have the benefit of this Court's ombombed decision in Pierre. So in this situation, I would urge that you find that a specific intent to violate the law has not been established and reverse the decision of the district court, or alternatively remand of the board to consider the issue of timing and retraction. Thank you very much. Thank you. We'll take the matter under advisement