good morning everyone before we begin judge person and i wish to thank judge district court for the district of hawaii thank you for coming and helping us with our busy docket we appreciate think you very much and i'd like to thank my law clerks for taking on the extra work to yes all of our law clerks deserve a lot of thanks yeah we also have one case submitted on the briefs at this time hossa hospitality versus hiscox and with that we'll hear the remaining cases in the order they appear on the docket beginning with  good morning your honour's robin roberts on behalf of the petitioner juan molina this case in this case mr molina has lived in the united states since he was about three months old and he's lived here he's been in the united are couple things i think we can agree on with the government in this particular case this case involves a question about whether that prior deportation which occurred when mr molina was a permanent resident or the prior deportation and may have  six was lawful or whether the board of immigration appeals is required to follow the district court's finding the th one thousand three hundred and twenty six cross a question more precisely yes whether it was lawful at the time it was issued yes whether it was lawful at the time that's right that that question arises in two different cases in two different context after he really entered into the united states mr molina was put in remove all proceedings in two thousand and twelve and in those removal proceedings he brought a collateral attack and argue that the prior deportation in may of one thousand nine hundred and six was unlawful the question also arises in the context of his motion to reopen he filed a motion to reopen which the board of immigration appeals denied him the question there in that motion to reopen is whether that deportation in may of one thousand nine hundred and six was unlawful i wan ask you about the preclusion issue because that really seems to me to be at the heart of your arguments that we have that the b i a in one or both of these contexts have to be bound by what the district court had identical do you agree that identical issue is one of the requirements for preclusion to apply for issue preclusion the u i believe the issues are identical held and you didn't answer my question is that a requirement that the issues be identical for issue preclusion to apply so that's a yes or no question is that a requirement of i what was wrong with their analysis with respect to that point ok so you have the issues the standard is maybe a little bit different in the two contexts but the issues the issues that are relevant here that are identical in bo standards to which i thought the difference between fairness and exceptional circumstances is that the difference so the five in so in both cases that the standard that the board uses is gross miscarriage of justice looked at that but that's not relevant to my question my question is whether the issues in the two proceedings are identical and that question was answered in detail in and twelve and so i'm pointing to that in saying what error if any did they make him analyzing the identical mess if that's a word of the issues so the issues that are identical in both are the ones that he was improperly deprived of the opportunity for judicial review and rd that there was a violation of due process and th that he was prejudiced by that violation now the violation of due process in his particular case involved the fact that he was eligible for to twelve c relief but he was not granted an opportunity to apply for that that re that this was not a litigator the issue which also is normally a requirement for issue preclusion know that those issues were all litigated in from the day i thought there was a concession by the government or a stipulation didn't i'm not sure whether the government actually agreed to that or not but it didn't put up much of a fight on the issue of eligibility it may well be that the government so mr molina had the burden of proof this is a contested issue that's that's my question whether it actually what's what's litigated is the case the issues you know they get the government may agree on a particular issue but issue preclusion is about issues and so if the issue that you want us to say the mr molina argued that he met his burden of proof on the four issues the government responded in and submitted a brief this is in the record and then the court was called on to make a decision  eye and say when they discuss the issue then my recollection and you can tell me if i'm wrong was that they didn't neither of them suggestions there was a problem about whether the there was the issues were litigated their view was that there were different standards and they cited some cases having to do with a reasonable doubt convictions but really that's nothing to do with this because this was not about a conviction beyond a reasonable doubt it was about a proceeding in which the petitioner did have the burden of proof and and as to the standard i mean i assume in both cases it's a predominance in terms of facts so that standard is the same so is there anything in the the so what the are we were viewing anything on the collateral stoppel issue other than what the case law that something else yeah it's old well the matter of perez the case that the board relies on is all his law that applied before put the burden of proof on mr molina on the on the defendant to prove those four elements the where those four elements are have to be resolved in the case with and the court accept those and makes a finding the collateral estoppel argument appeal and you're sort of passing the night on that do you have a separate due process argument on the fact that he didn't have the opportunity to appeal originally aside from the cloud i think there are twenty two things you know one is the finding that  had to make in order to dismiss but nd the record reflects that the this was a mail out order of deportation it was not an order in court where the judge says you have the right to appeal is a mail out order it was actually not it was addressed to  molina while he was in jail but care of another person there's no evidence that it was actually delivered to him and the the order itself in the order the representative was named as somebody other than mr mansell where in your opening brief to this so i'm not able to do that right off hand where that it was well i didn't see it that's why i'm asking you i didn't see a separate argument to that effect anywhere in your opening brief  sure we did point out in the briefing that mr molina did not receive you did mention that but there is no argument premised on that i understood your brief to say that the b i is analysis was wrong but i didn't read it to say that the b r c a failed to examine that specific issue or examined that specific issue in an improper way the reason the court's board's decision was wrong  this is even under their own standard the gross miscarriage of justice standard the way the board interprets that is whether the the order of deportation would have withstood judicial review at the time that the decision was issued i think the answer to that is clearly that it would not have withstood judicial review at the time if mr molina had been advised that if he had been able to take an appeal that the this court would did the board which a lot of things at the time i'm not sure the board decided the board has never actually the board itself has never actually dealt with the madonna because it's been consistent continually calling this a saint to the board right now along the same lines i e what he does didn't decide but this time i think you're not arguing it we're a man didn't last time to see what standard they were applying on the  circumstance maybe our argument is even accepting the board's standard gross miscarriage of justice that's misapplied in this case the what's the board means by gross miscarriage of justice is can the decision whether the deportation order could have withstood judicial review at the time it was entered and again that's this in this case the judge's order could not have withstood judicial clearly did in the proceeding you know there's a letter to the immigration judge explaining what he's trying to do to show that he should be allowed to live in the united states and headwear russian man oh yes i mean you have two cases that they didn't do that well that what they said is we rely on the argument that we might really is that what why why can't they do that well they think they can do that that's fine but then i mean you know if we want to attack that argument the petition of course has the right to argue to to make the argument that the board made a mistake in its rationale for why they denied you know why they say opening case but in the nd case all they're saying is we're not going to do this over again right but really you know they provide the reasons they're giving are the reasons that they have given in a prior case so that i mean the but it's a prior case involving the same person and i mean it's not like they're just saying some other random sanctions preclusion i don't understand why they didn't eleven you it appears that you're arguing the issue is whether he may apply for to twelve relief and as opposed to whether is entitle to reopen it my right or wrong entitled to apply for to twelve relief not not mr i mean you know the issue i guess ultimately then in front of the immigration judge is whether he should be granted whether he's entitled to the relief but the question here is whether he's entitled to apply that's one neck to the same place right right in both you know i mean the issue in the in both cases the issue is the same one whether or not that's exactly what i think i understand now so you've exceeded your time we've asked a lot it please the court jennifer corey on behalf of the attorney general all just go ahead and address the what was litigated before the district court let me let me ask you one question now that came to my the earlier one by failing to deal with them on a prisoner issue which was raised in the petitioners brief to the board starting at page seventy one dollars of the administrative record and it you're right since you're dealt with i think the board though was was giving credence to the argument just cited the rock case i believe but it doesn't really analyze the fact that he was in the proceedings and doesn't talk about that home well but they do they do the board did recognize that the law changed and that afterwards he would have been eligible for two  suspension clause or about any sort of big constitutional stuff but applying even if it got the case wrong the board was saying that even if it sorry didn't name the  was in proceedings which is his argument his argument is specifically not sincere i mean he that's an alternative he says does not apply to mr molina pena's deportation proceeding because it was pending before the seattle immigration court of the time of the enactment and then there's a long discussion of goneril and that argument seems to me  dealt with well but the board is saying yes it acknowledges there was a change in law that then made him at three years after the fact or two years after the fact eligible for to twelve seat but original proceeding or the execution right correct and and if in it for that purpose it might it not matter which rule he was correct so during execution if i if i understand your argument correctly it is regardless of how the arguments of the petitioner were characterized by the board its actual works i mean it was it said essentially this is what the statute always meant i mean st cyr was a more of a tour de force and i understand to regard that as a somewhat unpredictable result makes sense but the notion that the question when this court st got the issue we st got the issue right we said this is not this this is what this statue means and meant and snotty we're not changing the law we're simply saying what it was all along yes and i think that's petitioner's argument that the statue clearly did not apply retroactively at the time but that issue was litigated time reasonably interpreted it to apply to people in proceedings at that time and it was decided later but it wasn't there's nothing it wasn't clear it was something that had to be litigated these cases saying there's a different standard for why is surgery stranger now the burden was on him and the issues are sensually the same including this issue of whether he had an opportunity to appeal which the district court had to find he didn't in order to reach the result that it did and it was in that that's a finding i mean just by itself that it is of an issue that was decided by the just record it had to be to reach its conclusion and that my understanding us was certainly not right but what happened was is that the usa applied in his analysis applied before the amendment so he he analyzed mr molina statutory eligibility for two twelve c with the five years imprisonment term not that he was just an aggravated felony felon but that he needed five years of imprisonment but she would have been eligible under so that's not what the immigration judge applied right the immigration judge applied at after the amendment which took away the five years imprisonment then usa went on to say but we find that mr newman would not be prejudiced anyway because of his crimes  that it would have been denied as a matter of discretion in any case and that's what it does the district court decided they found that there that he was prejudiced and that was all there was an added before the bit district court it's just me but all applying the same standard that would be applied in immigration court right what is that different standard that the only thing the board said about why there's no collateral stop was that it was a different standard what's the different standard i think it's fundamentally unfair in million fair if at the time it was he was deported later law doesn't matter so it's the same standard underneath it right conclusion that there was a different standard applicable in the district court proceedings that it's now applicable and therefore there was no collateral stop because that's what it said citing a case that's not applicable so what is the different standard i mean the board said it was on fundamentally unfair vs gross but we know that we now know that they're both the same which is because in fact the standard in this court with regard to fundamentally unfair is it has to be at the well i it just seems that based on this court's this court's precedent in where the that was that was again what happened the district court dismissed i i don't know what exactly happened in the district court i know what applies in administrative proceedings and the fact that this was found in a criminal proceeding i don't believe  did not appeal it and he never argued that he didn't have notice oh yes he did he has to argue that from day one he didn't argue in his motion to reopen yes he did he mention the question as whether he was done argument  he mentioned it on his appeal to the board and he said one or two lines it said he had no he did not ever did not knowingly intelligently waive his right to appeal because the immigration judge did not tell him of his right to appeal but that that he doesn't explain why and then it's only before this court that he says he didn't get notice that's the st time he ever is that and the notice was sent to the same address every other notice was sent to you and he was ordered deported he said he found it and they had to find it well i don't think that the board the board analyzed the notice issue because that wasn't brought up to them so it was brought up to them as part of the you your honor and i would just point out on the issue about the lengthy delay sixteen years or so a case that's on point is the three matter of freeness very same situation the person was ordered deported and deported at a time when the order of deportation would not have withstood judicial scrutiny judicial scrutiny he was out of the united states for sixteen years came back into the united states and in deportation proceedings in the nd deportations brought it brought a collateral attack on the prior order of sixteen years earlier the board of immigration appeals adopted the gross miscarriage of justice standard said that that order when it was executed would not have withstood judicial judicial scrutiny not administrative scrutiny but your dish will scrutiny and gave him a two hundred and twelve dollars c we recognize that he's maintained because the deportation was improper a gross miscarriage of justice he maintained permanent resident status he was granted to twelve c relief and allowed to continue as a permanent residence a matter of freeness i think is exactly on point here in this case same situation clear that mr molina's order of deportation would not have withstood judicial scrutiny at the time in light of the