May it please the court. My name is Andrew Johnson. I'm representing the petitioner, Maycee You. And if you could keep your voice up, I have a little trouble hearing. Thank you. I'm always guilty of doing that, I apologize. And this is basically this is a case about a woman who entered the United States at 12, stayed for four months, returned with her parents to Hong Kong, came back 10 years later. And there are several issues in this case. Some of them I think are quite despositive and some are not so much
. The first issue is whether or not after 10 years of being in Hong Kong, the petitioner, in fact abandoned her legal residence. And the Board of Immigration found that in fact she had based not only on her parents, her parents situation where they in fact never returned to the United States except the father came five times for brief visits. And whether or not the petitioner herself had me not come to the United States again until she was 21, far past the date that she was emancipated, had any intention of returning to showing any intention of returning to the United States. I think it can be conceded that parents had no intention of returning to the United States permanently. The father had a job in Hong Kong that he maintained. The mother was too ill to return and subsequently deceased. And so I think the actions of the parents, the Board was correct and in fact that is a van to the part of the parents. And so does that intent get imputed to your client at the age of majority? I believe it does
. And I think the Board has been consistent with that over the years in terms of what the parents did. Is that fair? No. But the problem then we get is the actions of the petitioner after she turns 18. So you think that's the window between 18 and 21 or 18 and 22. That's the window that we need to focus on to determine at this point, yes. So I think for terms of the petitioner, the question is whether or not the court is willing to accept the petitioner's statement that she in fact thought she wasn't emancipated until she was 21. And reminding why is that significant? Is it because she didn't think she could leave Hong Kong? Correct. That she believed that she in fact, as wrong as she may have been at that point, that is when her parents told her that she in fact was not emancipated until she was 21
. Obviously, that other issues come into play in terms of her mother's health. The petitioner also ended up having a child during this period of time. But at the point at which she turned 21, she in fact gave away the custody of her child to the father and left for the United States. So I think the court would have, because in terms of the precedence, I think that the court were to say she was emancipated 18, then I think our argument that she in fact was diligent would not be accurate. So it would have to be the court accepting the fact that her belief that she wasn't emancipated, that she was 21, would be the standard to look at. Do we have anything on the record that tells us what the age of majority is in Hong Kong? Not in the record. I know it's cited in government's brief, but there was nothing ever entered into the record below in terms of what the age of emancipation is in Hong Kong. But that would be the way in terms of deciding whether or not she in fact abandoned her legal residence
. But to be honest, I think that we would concede that it's probably stretching a bit in terms of the 21 years of age our concern is whether or not she would qualify for a waiver. And I think that is the issue that unfortunately the Board of Immigration did not really address very effectively. And we believe that she in fact does qualify to ask for a waiver. Before you get to the waiver issue, because I just, I question whether we even have your section to review any aspect of that decision. But so I just want to understand the emancipation point. Sure. That your position is that your client, she believed perhaps erroneously that the age of emancipation was 21 in Hong Kong. But I guess I don't, does that mean that she thought she couldn't leave the country? Well, I don't even understand why do those two things go hand in hand? I don't know that Nester means she couldn't leave the country, but in terms of what the court looks at is after you've looked at the parents' actions or intentions
. At the point of emancipation, the court looks to the petitioners, the child's intentions. The questions do you look at it from 18 or do you look at it from 21, which is what she thought the age of emancipation was? And if you look at it from what her perspective was, what she believed it to be, then obviously after that age she moved quite quickly to return to the United States. Okay. Now you have to help. So I guess the task of the court is whether you're willing to do that. Yeah. If you don't, then and look at the actual true age of emancipation, which is 18, that I would consider that she obviously didn't move very quickly. Yeah, great
. But so on the waiver, the 212K waiver issue, I guess I read the BIA's decision is saying, we're going to assume that your client is eligible, but just as a pure matter of discretion, we're not going, we don't think she's entitled to the relief. I thought that it was quite clear that we do not have jurisdiction to review those purely discretionary determinations. In terms of what the board decided to discretion, I mean, they decided she didn't qualify for waiver, but they never really discussed whether she could even apply for a waiver. Unfortunately, the board does not address it at all. They just said, well, maybe if she qualifies to apply for the waiver, we're just going to find she didn't have it. They never really even discussed whether she could, in fact, apply for the waiver. Well, I'm reading the last full paragraph of the board. The board writes the respondent has not established a basis for granting her a waiver under 212K
. But then, the board goes on to say to the extent that the respondent is eligible to seek a waiver under 212K, we conclude that the respondent has not shown she managed a favorable grant of discretion. So I see kind of a belt in suspenders. Two ways of getting the result. The second one is assuming that she is legally eligible, we deny in the exercise of our discretion. And that exercise of discretion, I don't think we ever review over that. I don't think we have the right to review that. Well, I think that I would submit that the board didn't, and we're talking about the last paragraph of basically the several-page decision that they really don't get, I don't think they really did a very good job of assessing all of the factors that would be taken into account with regard to a discretionary decision to deny her a waiver. In fact, I think that their only throwout line was that she had a daughter in Hong Kong, and therefore we're not going to grant
. I don't think they took into account any other factors. Certainly not. Anything is discernible from the decision. And I think she's entitled to have a better analysis of why in fact or what she should in fact. Now, we do have some case law in which we say we don't have the authority to review an exercise of discretion in a case like this, but we do have authority to review whether or not the board has looked at the factors. And so you're saying, well, they looked only at the factor of the daughter being in Hong Kong. What other factors should the board have looked at in your view? If they were to look at the statute itself, they should have looked at whether or not she should have made a reasonable inquiry as to whether or not she had a valid entry permit or a valid document to enter the United States. In addition, does she have any significant ties in the United States? And they didn't do that
. They didn't, on the first point, they didn't do it at all. And the second one, they just simply cited one factor which I was some is in her favor, actually. So I don't think the board gave it. It's, and what would those factors be? She has a brother in the United States. She has a brother, an aunt and uncle and cousins in the United States were US citizens. In China, she has basically her elderly father and she has a daughter that she abandoned and gave up when she left the United States. In fact, the immigration judge found they were equal ties, but they went on to deny. So it's certainly a fact-based situation, but I think she should have the opportunity to submit what our, she believes, are her signalling ties in the United States
. Okay. Let's hear from the government. We've taken you to the end of your time, but we will give you a chance to respond. Thank you. Good morning, Your Honours. May it please the court. I'm Carmel Morgan on behalf of the Respondent, the US Attorney General. It appears that the petitioner has conceded that the parents' intention during the petitioner's minority was not to return to the US. So in other words, the petitioner's parents had no continuous uninterrupted intent to return as soon as possible, which is actually required in order for her to re-enter the United States without another type of entry document. I would argue that it's potentially dispositive, in fact, of the entire case, given that you need to have a continuous uninterrupted intent. And under this court's decision in Koshvam, you appropriately look to the parents' intent during the child's minority, the fact that the parents never had the intent to return may be dispositive of the case. But at any rate, in addition to the parents lacking that intent, there is no evidence in the record of actions that the petitioner took that would signify that she had an intent to return to the United States for that continuous uninterrupted period after she reached the age of majority. I don't think it matters, particularly in this case, whether we look at age 18 or age 21, in Koshvam, this court did consider the age to be 18, that case dealt with Iran, but I don't think there's any evidence that you look at the age of majority in the foreign country versus the United States, and that's not an issue that's been decided. Even if you consider the petitioner's argument, she still didn't take any actions after age 21 that would show her intent to return to the United States as soon as possible to resume her residency here. She was aged 22. So that's pretty fast
. So in other words, the petitioner's parents had no continuous uninterrupted intent to return as soon as possible, which is actually required in order for her to re-enter the United States without another type of entry document. I would argue that it's potentially dispositive, in fact, of the entire case, given that you need to have a continuous uninterrupted intent. And under this court's decision in Koshvam, you appropriately look to the parents' intent during the child's minority, the fact that the parents never had the intent to return may be dispositive of the case. But at any rate, in addition to the parents lacking that intent, there is no evidence in the record of actions that the petitioner took that would signify that she had an intent to return to the United States for that continuous uninterrupted period after she reached the age of majority. I don't think it matters, particularly in this case, whether we look at age 18 or age 21, in Koshvam, this court did consider the age to be 18, that case dealt with Iran, but I don't think there's any evidence that you look at the age of majority in the foreign country versus the United States, and that's not an issue that's been decided. Even if you consider the petitioner's argument, she still didn't take any actions after age 21 that would show her intent to return to the United States as soon as possible to resume her residency here. She was aged 22. So that's pretty fast. Pretty fast, but I would argue not fast enough when it's not coupled with actions that would show anything other than her professed intent. When I alien with legal permanent resident status leaves the country, presumably, let's say it's just a two-week absence or something, they don't need a visa or anything to come back, do they? Isn't the green card enough for what? That's correct, Your Honor, for a short temporary visit you need nothing else. How do they, when do they become inadmissible? Because the charge is sort of, you came here without looking into your inadmissibility and applying for a waiver overseas or something like that. How do you know when you've become inadmissible? I mean, there's just a running of time, or is it your own intent that makes it, and then how does the government know what the intent was? It seems to me that a notice requires, is imposed with a very, very big standard of when it should apply. If you look carefully at the immigration law, there's a couple of sections that certainly give clues as to how long you might safely reside abroad before returning without a document. The HCFR-211.82 says, if you've been outside of the United States for more than a year, you can't rely solely on the green card for readmission. So that year period is important to look at
. Pretty fast, but I would argue not fast enough when it's not coupled with actions that would show anything other than her professed intent. When I alien with legal permanent resident status leaves the country, presumably, let's say it's just a two-week absence or something, they don't need a visa or anything to come back, do they? Isn't the green card enough for what? That's correct, Your Honor, for a short temporary visit you need nothing else. How do they, when do they become inadmissible? Because the charge is sort of, you came here without looking into your inadmissibility and applying for a waiver overseas or something like that. How do you know when you've become inadmissible? I mean, there's just a running of time, or is it your own intent that makes it, and then how does the government know what the intent was? It seems to me that a notice requires, is imposed with a very, very big standard of when it should apply. If you look carefully at the immigration law, there's a couple of sections that certainly give clues as to how long you might safely reside abroad before returning without a document. The HCFR-211.82 says, if you've been outside of the United States for more than a year, you can't rely solely on the green card for readmission. So that year period is important to look at. But also, you've got a significant body of caselo from this court and the board that discusses factors, and the duration of your residence abroad is something that's going to be weighed. One of those I think mentioned more than nine months or something like that. There is a provision in the INA that's 101A13C that says legal permanent residents are not regarded as seeking admission unless they'd either won, abandoned, their legal permanent resident status, or two, have been absent in excess of 180 days, which I guess is six months. Six months, second. If we were to conclude that the INA is correct in holding that she abandoned, does that necessarily mean that she's ineligible for 212K, or is she still eligible for 212K? That is a good question, and it's one that I don't think the agency answered because they didn't make a decision based on eligibility. They assumed that she was eligible and then went forward and made a discretionary determination that they did not feel she merited the waiver. Maybe that's what that first sentence means. I read the first sentence of the last paragraph to be a holding by the BIA that she was statutorily ineligible, but maybe I'm misreading it
. But also, you've got a significant body of caselo from this court and the board that discusses factors, and the duration of your residence abroad is something that's going to be weighed. One of those I think mentioned more than nine months or something like that. There is a provision in the INA that's 101A13C that says legal permanent residents are not regarded as seeking admission unless they'd either won, abandoned, their legal permanent resident status, or two, have been absent in excess of 180 days, which I guess is six months. Six months, second. If we were to conclude that the INA is correct in holding that she abandoned, does that necessarily mean that she's ineligible for 212K, or is she still eligible for 212K? That is a good question, and it's one that I don't think the agency answered because they didn't make a decision based on eligibility. They assumed that she was eligible and then went forward and made a discretionary determination that they did not feel she merited the waiver. Maybe that's what that first sentence means. I read the first sentence of the last paragraph to be a holding by the BIA that she was statutorily ineligible, but maybe I'm misreading it. Well, I think arguably you could look at that paragraph dealing with the waiver. They make a statement that she didn't exercise due diligence in determining whether she was inadmissible. Okay, so maybe they haven't disowned, I'll take you at your word then, that the government did not decide whether she's that's thoroughly eligible or ineligible for the 212K. So let's then get to the discretion. I think you probably are aware of the case law that we have that says well, the discretionary determination is not revealable by us. Whether they looked at the factors in exercising their discretion is revealable. Am I accurately stating our case law in your view? I think that's pretty fair. Well, so there are lots of factors that we just heard, and the only one they listed is she's got a daughter, she's got a child back in, she's got a daughter back in Hong Kong
. Well, I think arguably you could look at that paragraph dealing with the waiver. They make a statement that she didn't exercise due diligence in determining whether she was inadmissible. Okay, so maybe they haven't disowned, I'll take you at your word then, that the government did not decide whether she's that's thoroughly eligible or ineligible for the 212K. So let's then get to the discretion. I think you probably are aware of the case law that we have that says well, the discretionary determination is not revealable by us. Whether they looked at the factors in exercising their discretion is revealable. Am I accurately stating our case law in your view? I think that's pretty fair. Well, so there are lots of factors that we just heard, and the only one they listed is she's got a daughter, she's got a child back in, she's got a daughter back in Hong Kong. I'm not sure what all those other factors are. I think when you asked Petitioner's counsel, he had difficulty articulating those. You know, he gave me quite a lot. She's got a brother, she's got an aunt, she's got relatives, I mean, they're all kinds of things that I think would be considered as factors in the exercise of discretion that are not mentioned here. I don't think it's the Board's duty to mention every possible factor that it considered, and I don't think the court can decide that the Board ignored factors that it didn't articulate. It was very clear that it made a discretionary determination, and that that determination, both the Immigration Judge and the Board, pointed to the factor of the daughter being a close tie to Hong Kong, but the discretionary nature of the decision was dependent on it on the agency's determination that the limited ties she had in the United States were not enough. They did recognize in the Immigration Judge's decision she does have a brother, but those other relatives not being immediate relatives probably didn't merit discussion possibly. I mean, I have to say our case law in which we say we get to review whether the Board looked at the appropriate factors in exercising discretion, this kind of at the edge of the law, I'm not sure how comfortable I am with our case law on that point
. I'm not sure what all those other factors are. I think when you asked Petitioner's counsel, he had difficulty articulating those. You know, he gave me quite a lot. She's got a brother, she's got an aunt, she's got relatives, I mean, they're all kinds of things that I think would be considered as factors in the exercise of discretion that are not mentioned here. I don't think it's the Board's duty to mention every possible factor that it considered, and I don't think the court can decide that the Board ignored factors that it didn't articulate. It was very clear that it made a discretionary determination, and that that determination, both the Immigration Judge and the Board, pointed to the factor of the daughter being a close tie to Hong Kong, but the discretionary nature of the decision was dependent on it on the agency's determination that the limited ties she had in the United States were not enough. They did recognize in the Immigration Judge's decision she does have a brother, but those other relatives not being immediate relatives probably didn't merit discussion possibly. I mean, I have to say our case law in which we say we get to review whether the Board looked at the appropriate factors in exercising discretion, this kind of at the edge of the law, I'm not sure how comfortable I am with our case law on that point. I'm not sure how comfortable. And I also say I'm not entirely comfortable with requiring the BIA or the IJ and the exercise of discretion to enumerate every possible factor, and the other is quite striking here that only one factor is mentioned, and it's the one factor that I think is the least favorable to her with a certain view of motherhood. I mean, she has abandoned the child, she has given custody to the father, so in her view, that's not a tie at all. I mean, this is the BIA saying a good mother would have some connection to the child. I'm not sure that's really what the Board wasn't intending to say. I can say I've sharpened the pencil a little bit. The respondents' minor daughter remains in Hong Kong, that's what they say, and that's clearly a factor that they are relying on to say, well, we're not going to let you stay here. Yes, it was a factor that the immigration judge emphasized as well, but the immigration judge pointed out her father and her mother and petitioner as well spent virtually the entirety of their lives in Hong Kong
. I'm not sure how comfortable. And I also say I'm not entirely comfortable with requiring the BIA or the IJ and the exercise of discretion to enumerate every possible factor, and the other is quite striking here that only one factor is mentioned, and it's the one factor that I think is the least favorable to her with a certain view of motherhood. I mean, she has abandoned the child, she has given custody to the father, so in her view, that's not a tie at all. I mean, this is the BIA saying a good mother would have some connection to the child. I'm not sure that's really what the Board wasn't intending to say. I can say I've sharpened the pencil a little bit. The respondents' minor daughter remains in Hong Kong, that's what they say, and that's clearly a factor that they are relying on to say, well, we're not going to let you stay here. Yes, it was a factor that the immigration judge emphasized as well, but the immigration judge pointed out her father and her mother and petitioner as well spent virtually the entirety of their lives in Hong Kong. So their ties in Hong Kong were indeed very, very strong, even if you don't look at the daughter. So I think it was really weighing the strength of the relative ties, and given the great duration of time she spent in her home country, they just didn't feel that she married a discretion, and it's the government's argument that since that is a discretionary determination, the Court doesn't have jurisdiction to review it. It might be a different case if we had a specific statute or case law that set out, about A, B, C, D, E, F, G, you must consider these points, but I'm not familiar with one for a 212k waiver that enumerates exactly what points you have to discuss. Therefore, I think in this case, articulating some reason is probably enough to insulate it from the Court's review. If there are no further questions, the government asks that you dismiss the petition for review with regard to the 212k waiver and deny the petition with regard to the abandonment of legal permanent resident status. Okay, thank you. What do you put a minute on the clock, please? I think that what the petition would ask the Court to do is to allow, excuse me, your Honor, I apologize. What is to remand this matter in order for the Board to make it, I think, first make the decision to decide the issue of whether or not the petitioner qualifies to ask for a waiver, and then take each of the elements of 212k and make a determination as to whether or not she in fact qualifies for a waiver and should under the discretion of have a waiver, and give us more than simply a negative factor to say that it's a positive factor
. So their ties in Hong Kong were indeed very, very strong, even if you don't look at the daughter. So I think it was really weighing the strength of the relative ties, and given the great duration of time she spent in her home country, they just didn't feel that she married a discretion, and it's the government's argument that since that is a discretionary determination, the Court doesn't have jurisdiction to review it. It might be a different case if we had a specific statute or case law that set out, about A, B, C, D, E, F, G, you must consider these points, but I'm not familiar with one for a 212k waiver that enumerates exactly what points you have to discuss. Therefore, I think in this case, articulating some reason is probably enough to insulate it from the Court's review. If there are no further questions, the government asks that you dismiss the petition for review with regard to the 212k waiver and deny the petition with regard to the abandonment of legal permanent resident status. Okay, thank you. What do you put a minute on the clock, please? I think that what the petition would ask the Court to do is to allow, excuse me, your Honor, I apologize. What is to remand this matter in order for the Board to make it, I think, first make the decision to decide the issue of whether or not the petitioner qualifies to ask for a waiver, and then take each of the elements of 212k and make a determination as to whether or not she in fact qualifies for a waiver and should under the discretion of have a waiver, and give us more than simply a negative factor to say that it's a positive factor. Now, I think that's just, I think that's what's expected from the Board, in the fact that we didn't get any of that. Okay, thank you. Thank you. We will decide for their arguments. The case of May, June, versus Holder is now submitted for decision.
. Now, I think that's just, I think that's what's expected from the Board, in the fact that we didn't get any of that. Okay, thank you. Thank you. We will decide for their arguments. The case of May, June, versus Holder is now submitted for decision.
May it please the court. My name is Andrew Johnson. I'm representing the petitioner, Maycee You. And if you could keep your voice up, I have a little trouble hearing. Thank you. I'm always guilty of doing that, I apologize. And this is basically this is a case about a woman who entered the United States at 12, stayed for four months, returned with her parents to Hong Kong, came back 10 years later. And there are several issues in this case. Some of them I think are quite despositive and some are not so much. The first issue is whether or not after 10 years of being in Hong Kong, the petitioner, in fact abandoned her legal residence. And the Board of Immigration found that in fact she had based not only on her parents, her parents situation where they in fact never returned to the United States except the father came five times for brief visits. And whether or not the petitioner herself had me not come to the United States again until she was 21, far past the date that she was emancipated, had any intention of returning to showing any intention of returning to the United States. I think it can be conceded that parents had no intention of returning to the United States permanently. The father had a job in Hong Kong that he maintained. The mother was too ill to return and subsequently deceased. And so I think the actions of the parents, the Board was correct and in fact that is a van to the part of the parents. And so does that intent get imputed to your client at the age of majority? I believe it does. And I think the Board has been consistent with that over the years in terms of what the parents did. Is that fair? No. But the problem then we get is the actions of the petitioner after she turns 18. So you think that's the window between 18 and 21 or 18 and 22. That's the window that we need to focus on to determine at this point, yes. So I think for terms of the petitioner, the question is whether or not the court is willing to accept the petitioner's statement that she in fact thought she wasn't emancipated until she was 21. And reminding why is that significant? Is it because she didn't think she could leave Hong Kong? Correct. That she believed that she in fact, as wrong as she may have been at that point, that is when her parents told her that she in fact was not emancipated until she was 21. Obviously, that other issues come into play in terms of her mother's health. The petitioner also ended up having a child during this period of time. But at the point at which she turned 21, she in fact gave away the custody of her child to the father and left for the United States. So I think the court would have, because in terms of the precedence, I think that the court were to say she was emancipated 18, then I think our argument that she in fact was diligent would not be accurate. So it would have to be the court accepting the fact that her belief that she wasn't emancipated, that she was 21, would be the standard to look at. Do we have anything on the record that tells us what the age of majority is in Hong Kong? Not in the record. I know it's cited in government's brief, but there was nothing ever entered into the record below in terms of what the age of emancipation is in Hong Kong. But that would be the way in terms of deciding whether or not she in fact abandoned her legal residence. But to be honest, I think that we would concede that it's probably stretching a bit in terms of the 21 years of age our concern is whether or not she would qualify for a waiver. And I think that is the issue that unfortunately the Board of Immigration did not really address very effectively. And we believe that she in fact does qualify to ask for a waiver. Before you get to the waiver issue, because I just, I question whether we even have your section to review any aspect of that decision. But so I just want to understand the emancipation point. Sure. That your position is that your client, she believed perhaps erroneously that the age of emancipation was 21 in Hong Kong. But I guess I don't, does that mean that she thought she couldn't leave the country? Well, I don't even understand why do those two things go hand in hand? I don't know that Nester means she couldn't leave the country, but in terms of what the court looks at is after you've looked at the parents' actions or intentions. At the point of emancipation, the court looks to the petitioners, the child's intentions. The questions do you look at it from 18 or do you look at it from 21, which is what she thought the age of emancipation was? And if you look at it from what her perspective was, what she believed it to be, then obviously after that age she moved quite quickly to return to the United States. Okay. Now you have to help. So I guess the task of the court is whether you're willing to do that. Yeah. If you don't, then and look at the actual true age of emancipation, which is 18, that I would consider that she obviously didn't move very quickly. Yeah, great. But so on the waiver, the 212K waiver issue, I guess I read the BIA's decision is saying, we're going to assume that your client is eligible, but just as a pure matter of discretion, we're not going, we don't think she's entitled to the relief. I thought that it was quite clear that we do not have jurisdiction to review those purely discretionary determinations. In terms of what the board decided to discretion, I mean, they decided she didn't qualify for waiver, but they never really discussed whether she could even apply for a waiver. Unfortunately, the board does not address it at all. They just said, well, maybe if she qualifies to apply for the waiver, we're just going to find she didn't have it. They never really even discussed whether she could, in fact, apply for the waiver. Well, I'm reading the last full paragraph of the board. The board writes the respondent has not established a basis for granting her a waiver under 212K. But then, the board goes on to say to the extent that the respondent is eligible to seek a waiver under 212K, we conclude that the respondent has not shown she managed a favorable grant of discretion. So I see kind of a belt in suspenders. Two ways of getting the result. The second one is assuming that she is legally eligible, we deny in the exercise of our discretion. And that exercise of discretion, I don't think we ever review over that. I don't think we have the right to review that. Well, I think that I would submit that the board didn't, and we're talking about the last paragraph of basically the several-page decision that they really don't get, I don't think they really did a very good job of assessing all of the factors that would be taken into account with regard to a discretionary decision to deny her a waiver. In fact, I think that their only throwout line was that she had a daughter in Hong Kong, and therefore we're not going to grant. I don't think they took into account any other factors. Certainly not. Anything is discernible from the decision. And I think she's entitled to have a better analysis of why in fact or what she should in fact. Now, we do have some case law in which we say we don't have the authority to review an exercise of discretion in a case like this, but we do have authority to review whether or not the board has looked at the factors. And so you're saying, well, they looked only at the factor of the daughter being in Hong Kong. What other factors should the board have looked at in your view? If they were to look at the statute itself, they should have looked at whether or not she should have made a reasonable inquiry as to whether or not she had a valid entry permit or a valid document to enter the United States. In addition, does she have any significant ties in the United States? And they didn't do that. They didn't, on the first point, they didn't do it at all. And the second one, they just simply cited one factor which I was some is in her favor, actually. So I don't think the board gave it. It's, and what would those factors be? She has a brother in the United States. She has a brother, an aunt and uncle and cousins in the United States were US citizens. In China, she has basically her elderly father and she has a daughter that she abandoned and gave up when she left the United States. In fact, the immigration judge found they were equal ties, but they went on to deny. So it's certainly a fact-based situation, but I think she should have the opportunity to submit what our, she believes, are her signalling ties in the United States. Okay. Let's hear from the government. We've taken you to the end of your time, but we will give you a chance to respond. Thank you. Good morning, Your Honours. May it please the court. I'm Carmel Morgan on behalf of the Respondent, the US Attorney General. It appears that the petitioner has conceded that the parents' intention during the petitioner's minority was not to return to the US. So in other words, the petitioner's parents had no continuous uninterrupted intent to return as soon as possible, which is actually required in order for her to re-enter the United States without another type of entry document. I would argue that it's potentially dispositive, in fact, of the entire case, given that you need to have a continuous uninterrupted intent. And under this court's decision in Koshvam, you appropriately look to the parents' intent during the child's minority, the fact that the parents never had the intent to return may be dispositive of the case. But at any rate, in addition to the parents lacking that intent, there is no evidence in the record of actions that the petitioner took that would signify that she had an intent to return to the United States for that continuous uninterrupted period after she reached the age of majority. I don't think it matters, particularly in this case, whether we look at age 18 or age 21, in Koshvam, this court did consider the age to be 18, that case dealt with Iran, but I don't think there's any evidence that you look at the age of majority in the foreign country versus the United States, and that's not an issue that's been decided. Even if you consider the petitioner's argument, she still didn't take any actions after age 21 that would show her intent to return to the United States as soon as possible to resume her residency here. She was aged 22. So that's pretty fast. Pretty fast, but I would argue not fast enough when it's not coupled with actions that would show anything other than her professed intent. When I alien with legal permanent resident status leaves the country, presumably, let's say it's just a two-week absence or something, they don't need a visa or anything to come back, do they? Isn't the green card enough for what? That's correct, Your Honor, for a short temporary visit you need nothing else. How do they, when do they become inadmissible? Because the charge is sort of, you came here without looking into your inadmissibility and applying for a waiver overseas or something like that. How do you know when you've become inadmissible? I mean, there's just a running of time, or is it your own intent that makes it, and then how does the government know what the intent was? It seems to me that a notice requires, is imposed with a very, very big standard of when it should apply. If you look carefully at the immigration law, there's a couple of sections that certainly give clues as to how long you might safely reside abroad before returning without a document. The HCFR-211.82 says, if you've been outside of the United States for more than a year, you can't rely solely on the green card for readmission. So that year period is important to look at. But also, you've got a significant body of caselo from this court and the board that discusses factors, and the duration of your residence abroad is something that's going to be weighed. One of those I think mentioned more than nine months or something like that. There is a provision in the INA that's 101A13C that says legal permanent residents are not regarded as seeking admission unless they'd either won, abandoned, their legal permanent resident status, or two, have been absent in excess of 180 days, which I guess is six months. Six months, second. If we were to conclude that the INA is correct in holding that she abandoned, does that necessarily mean that she's ineligible for 212K, or is she still eligible for 212K? That is a good question, and it's one that I don't think the agency answered because they didn't make a decision based on eligibility. They assumed that she was eligible and then went forward and made a discretionary determination that they did not feel she merited the waiver. Maybe that's what that first sentence means. I read the first sentence of the last paragraph to be a holding by the BIA that she was statutorily ineligible, but maybe I'm misreading it. Well, I think arguably you could look at that paragraph dealing with the waiver. They make a statement that she didn't exercise due diligence in determining whether she was inadmissible. Okay, so maybe they haven't disowned, I'll take you at your word then, that the government did not decide whether she's that's thoroughly eligible or ineligible for the 212K. So let's then get to the discretion. I think you probably are aware of the case law that we have that says well, the discretionary determination is not revealable by us. Whether they looked at the factors in exercising their discretion is revealable. Am I accurately stating our case law in your view? I think that's pretty fair. Well, so there are lots of factors that we just heard, and the only one they listed is she's got a daughter, she's got a child back in, she's got a daughter back in Hong Kong. I'm not sure what all those other factors are. I think when you asked Petitioner's counsel, he had difficulty articulating those. You know, he gave me quite a lot. She's got a brother, she's got an aunt, she's got relatives, I mean, they're all kinds of things that I think would be considered as factors in the exercise of discretion that are not mentioned here. I don't think it's the Board's duty to mention every possible factor that it considered, and I don't think the court can decide that the Board ignored factors that it didn't articulate. It was very clear that it made a discretionary determination, and that that determination, both the Immigration Judge and the Board, pointed to the factor of the daughter being a close tie to Hong Kong, but the discretionary nature of the decision was dependent on it on the agency's determination that the limited ties she had in the United States were not enough. They did recognize in the Immigration Judge's decision she does have a brother, but those other relatives not being immediate relatives probably didn't merit discussion possibly. I mean, I have to say our case law in which we say we get to review whether the Board looked at the appropriate factors in exercising discretion, this kind of at the edge of the law, I'm not sure how comfortable I am with our case law on that point. I'm not sure how comfortable. And I also say I'm not entirely comfortable with requiring the BIA or the IJ and the exercise of discretion to enumerate every possible factor, and the other is quite striking here that only one factor is mentioned, and it's the one factor that I think is the least favorable to her with a certain view of motherhood. I mean, she has abandoned the child, she has given custody to the father, so in her view, that's not a tie at all. I mean, this is the BIA saying a good mother would have some connection to the child. I'm not sure that's really what the Board wasn't intending to say. I can say I've sharpened the pencil a little bit. The respondents' minor daughter remains in Hong Kong, that's what they say, and that's clearly a factor that they are relying on to say, well, we're not going to let you stay here. Yes, it was a factor that the immigration judge emphasized as well, but the immigration judge pointed out her father and her mother and petitioner as well spent virtually the entirety of their lives in Hong Kong. So their ties in Hong Kong were indeed very, very strong, even if you don't look at the daughter. So I think it was really weighing the strength of the relative ties, and given the great duration of time she spent in her home country, they just didn't feel that she married a discretion, and it's the government's argument that since that is a discretionary determination, the Court doesn't have jurisdiction to review it. It might be a different case if we had a specific statute or case law that set out, about A, B, C, D, E, F, G, you must consider these points, but I'm not familiar with one for a 212k waiver that enumerates exactly what points you have to discuss. Therefore, I think in this case, articulating some reason is probably enough to insulate it from the Court's review. If there are no further questions, the government asks that you dismiss the petition for review with regard to the 212k waiver and deny the petition with regard to the abandonment of legal permanent resident status. Okay, thank you. What do you put a minute on the clock, please? I think that what the petition would ask the Court to do is to allow, excuse me, your Honor, I apologize. What is to remand this matter in order for the Board to make it, I think, first make the decision to decide the issue of whether or not the petitioner qualifies to ask for a waiver, and then take each of the elements of 212k and make a determination as to whether or not she in fact qualifies for a waiver and should under the discretion of have a waiver, and give us more than simply a negative factor to say that it's a positive factor. Now, I think that's just, I think that's what's expected from the Board, in the fact that we didn't get any of that. Okay, thank you. Thank you. We will decide for their arguments. The case of May, June, versus Holder is now submitted for decision