additional statements that were taken from her at the airport and at the deferred inspection should be suppressed because she had become the focal point of a criminal investigation secondly we would argue that she has not admitted the essential elements of the crime of aggravated assault in texas and third we would allege that the government failed in its burden to establish that self defense was not a motive unlike in other states in texas self defense is something that the prosecution must disprove rather than the defendant prove and have the burden of and therefore this case is distinguishable from a decision that was rendered by this where a person is entering the united states through primary and secondary inspection responding to correct that a person is not entitled to counsel when you're coming in and you're seeking admission to the united states however this regulation makes clear the instances where a person who normally would not be entitled to counsel is entitle to counsel and it's specifically stated specifically states that nothing in this paragraph should be construed to provide any applicant for admission in either primary or secondary the right representation unless the applicant for admission has become the focus of a criminal investigation being investigated for criminal offenses that are your honor it we would contend the petition would contend that she had these the inspecting officers realized that there was an arrest and that there was not a conviction but they were unaware that the statute of limitations had run and so the the inspecting officers should have been on  notice at that point that any statements that they were taking from her might violate her right to go in self incrimination under the fifth so what crime was being investigated at that point there was no crime being investigated at that point your hon because this is such an old aggravated assault case that if the prosecution the statute limitations had run and the prosecution had been dismissed on this case the regulation check and if there is no criminal investigation at that point then how how does regulation at that point your honor we would contend that the service when they began the questioning i mean in hindsight it appears that she should not have been ran read her rights but what what we're saying is that at the time that she was being questioned they were unaware that there was nothing pending and that they were taking statements from her that might have violated her rights even that might have been useful by somebody in texas but it would have been of absolutely no use to be to the service in the prosecution of a crime correct ok so your argument is that is that is that the is that the officer should have realized that something that she said could be used by somebody else to prosecute this crime even though they had no interest whatsoever in those in those statements for the purposes of prosecuting or for crime stats that there are things which the service might have an interest in prosecuting the crimes if there are things that ins can can pursue criminally best for this would have been one of them this would not have been one of them entry without inspection is a criminal offense that sort of involves immigration but this would not have been one of them are are second argument which is really the thrust of why we're here today is whether the petition for the defense of self defense so what you're saying actually we're going to we had we've argued number one that she's not admitted the essential elements of the offense and are second argument or i guess  have been my third argument is that self defense was not something that she was admitted she was persistently questioned until she got the answers that the officer got the answers that he wanted when he first asked her in the administrative  and of course i don't when she was first asked whether she had shot the shot this person her initial answer was no and what ended up happening is that the officer continued to question her until he got the answers that he wanted the answer no was and was not correct wasn't the answer no was not not  that's why he continued to follow up and it was not correct but the question really here today is not so much whether she committed the crime or whether she didn't commit the crime in this in this instance the question is whether she actually freely and voluntarily admitted in that she vehemently denied having done this but moving to our third argument if we want to she shot the guy right she did shoot the guy in the back her child had him three or four times and shot several times exactly consistent in the first statement she mentions that she may have shot him in the back in the other state and she indicates that she started shooting when he had her his hands to her throat and so it does appear that she did fire a weapon no doubt about that it also appears that the person was hit in the shoulder which brings us to our third argument which is self defense what she has been maintaining since the moment she landed at honolulu's airport was that she acted in self defense in texas self defense is an absolute defense it is also something that the prosecution court held that the essential elements are those elements that the prosecutor must prove it that's proved equal disprove in your view your honor i believe that it does because under texas case mohammed versus texas if a defendant raises the issue of self defense it is the burden of the prosecutor to do is prove beyond a reasonable doubt whether has held is that the essential elements as used in this context as far as the admitting the essential elements of a crime are element constituent parts of the offense which must be proved by the prosecution in every case to sustain a conviction under a given statute but tense authority do you have to support your argument that the burden to death prove and of perma to the defense equates to the burden of proof of an element what casey relying upon to defense but does that make it an element of the crime that the prosecution must prove there's a difference in my view between an element of the offense that the prosecution must prove and an affirmative defense that the prosecution must prosecution comes up and says here we have missed she shot she shot mr lee it was premeditated she had the gun she shoots him in the back that you make it up and move for acqui  why do you get to do allegedly the defense of self defense at this point if they proved on the elements of of the crime because she has to admit all the essential elements of a crime and what they have to do before that that that admission considered valid is they have to read to her the elements of the crime and they have to redo or did you do this did you do this and in texas if she said i i did this in self defense then an additional element of this proving self defense would be there and that's texas which she'd be able to assert that defense here and would it be the government's burden then to prove that she was sane at the time and unfortunately she would not be able to if it was her burden to prove it under the possible again case that this court recently rule court held that since the burden was on the defendant to prove that then that's not considered an essential element we don't need to look at it all we look at and how we define essential elements are things that the government must prove in each and every case thank you counsel immigration judge she had to show under the statute she had to show that she was clearly and beyond a doubt entitle to be admitted and then this court's review is also very heavy with regard to mistranslate the court must find that the immigration judge determination is conclusive and must it is manifestly contrary to law so mr and has a very heavy burden in this case to to prevail the record shows that she has not met the stringent standard if you go to confront someone with a weapon you you're not really acting in self defense when you also what effect if any did the strip search have on the involuntary nature of her statement it did not have routine when they bring someone to the airport to search them for evidence of that might pertain to the and the stability issues as well as for the security of the people at the airport and in this case given that she had previously she did minutes that she previously used a gun those who fly frequently i guess that's not very reassuring to know that you have to do a strip search in order to prevent somebody from having a gun in an airport but i think they were looking for more than just a gun any sort of weapon or anything else she was she was  brought someone to the airport they did have to wait to do the search of her she was allowed it happened right when she got to the airport they did a search of her then they let her put her clothes back on took her to another room to interview her there's no evidence that they did the strip search just for the purpose of intimidating her or force you know forcing her to that's pretty traumatic of carts that say she was scared and frightened but she did not indicate in any way that her will was over born such that the statements that she then made were somehow involuntary and if they act i don't really think the court even needs to rethink the issue of whether the search was unduly coercive or whether the statement should not have been admitted because she basically admitted to sufficient facts at the hearing to support the finding that she was not admissible she admitted at the hearing that she shot a gun recklessly in the in the direction of the victim and that's sufficient to meet the definition of aggravated assault under texas law so what did she say i think hearing with regard to the self defense issue well again she argued that she was afraid of this guy that he had they've had arguments before and that at the time that they can she said the day they can run to each other he has started to strangle her and she got that was that the day before the day she shot him well that originally her first statement she said that he had tried to strangle her the day before the confrontation at this the second statement that she made and then at the hearing she said it occurred just five minutes before she started shooting at him so there is a little bit of a contradiction there but even if did assault requires only men three of recklessness and to shoot a gun when you're in a confrontation with someone is reckless that's reckless intent to reckless actions to harm somebody and this as i said before the self defense defense doesn't apply here when she knew that she was going to have a confrontation with someone and she brought the gun with her under texas law that those circumstances do not allow for a defense of self defense because you she could have in fact in the mohammad case they rejected the self defense argument because they said he could have left after he first hit the victim he could have left her because she knocked into a corner so he could have left at that point in this case or the confrontation entirely so well under the case of muhammad the self defense defense doesn't even apply here in any event self defense is not an essential element of the crime the central elements are those that need to be proven by the prosecution in every case and the missing question i asked i asked mr mears what what if she  she was not actually convicted in texas she's never had an opportunity to put on a self defense and if she had had a different defense of insanity let's say she would never had an opportunity to do that so what what somebody supposed to do in a case like this you are  but in that case there's three parts of that statute in that case she would have fallen under one the earlier parts which says if you have a conviction for a crime of moral turpitude so congress could get out of this also means that if texas had tried this to conclusion and the jury had come back and said not guilty by reason of insanity but she had admitted the essential element you could still throw her out that's a decision congress made as to the category of people that wanted to exclude from the united states again it's not a criminal sanction we're imposing here on her we're just saying these are the kinds of people we're not going to admit and congress made the decision clearly in that statute to make it just broader than people who were convicted of particular crimes but even those who had not been convicted but yet admitted the essential elements and congress did not put in any any phrase saying except to the extent that they had a valid defense to that to the crime so i think we'd have to look at each particular and beyond a doubt entitled to be admitted i don't that's not beyond a reasonable doubt that's beyond a doubt and i i don't know how the two standards compare but as far as looking at whether she had if self defense  what was an essential element of the crime that has had to be disproved by the government the standard would be only whether she had shown clearly and beyond a doubt that the government had failed to disprove that that's not too confusing  self defense and that she had admitted to the essential elements of the crime was did not meet the clearly and beyond a doubt standard for i mean and now i'm getting confused she did not show clearly and beyond a doubt that she did not admit to the essential elements of the crime and that was the standard at chatham and then this court's review is this court must uphold the immigration judge just determination as conclusive unless it's are you are basically i think the most important thing to take away from what we're doing today here is that she is not on trial she was not on trial for aggravated assault in front of the immigration court she was not on trial for aggravated assault here the only issue is whether she has freely voluntarily and on equivocally admitted the essential elements of a crime according to border case law in order for a person to do that a person has to be read prior to the statement the essential elements of a crime those elements have to be read to her she must freely unequivocally and those questions yes even if she answers them no incorrectly it's still not a free and voluntary admission so it's not really whether you know the evidence prove for the evidence proves that the question of law is purely did she freely and voluntarily admit each and every one of the elements that was read to her and when she said no she didn't to the extent that self defense must be disproved in texas this court has held that that that in these instances in essential element of a crime is considered to be all those things that the prosecutor must prove it is our contention that in order for her to be inadmissible to the united states they had t list the essential elements of the aggravated assault in texas and say here's what they are do you admit then do you deny them even if she denies them without evidence it's not a free involuntary admission to the extent that she raised the self defense they should have read her the statu regarding self defense because again the prosecutor had to prove that not the defendant they did not do that she has not freely and voluntarily admitted these offenses and that's the only issue before this court today thank you very much we thank both counsel for the