categorically the ability to even apply for asylum for one reason alone having nothing to do with her substantive eligibility she entered the country illegally and was thus subject to a reinstatement of an earlier removal order the government admits a page forty one of its brief that if she had quote presented herself for inspection at the border without having illegally reentered the country and without the issuance of a reinstated removal order she could have applied for asylum that is exactly what the refugee convention prohibits as this court held just two months ago in the east bay sanctuary case in an opinion written by judge bybee quoting article thirty one point one of the refugee convention just by b quote in accordance with the convention and protocol congress require the government to accept asylum applications from airlie and irrespective of whether or not they arrive lawfully through a port of entry this provision reflects our understanding of our treaty obligation not to impose penalties on refugees on account of their illegal entry or presence could could congress consistent with our treaty obligations said someone subject to a prior deportation order is ineligible for asylum and come apply only for withholding without making the distinction between whether the second entry is legal or illegal congress could not have done that consistent with our tre obligations but what congress could have done is expressly repeal or abrogate our compliance with the treaty in those circumstances so there are cases in which congress has used language to that effect language where the court has said with we're congress has said notwithstanding any other provision of law or notwithstanding our treaty obligations we establish the following principle that's not what the what congress did here and in fact in the paris guzman case decided by this court this court decided that congress  in fact expressly abrogated its treaty obligations by enacting section twelve thirty one a five that brings us to the important point of paris guzman and it seems to me that virtually or maybe all of your arguments are for closed by that because the issue presented there it is really the same issue as presented here  different flavors of arguments so i'd like you to address that i had a feeling person whose mom would come up today it would surprise if we think there are two very good reasons why pairs because one does not control this case number one the charming bessie doctrine and in fact the entirety of the refugee convention and protocol was not discussed or considered by the panel in the first guzman case and this court has held in a variety of cases including the miller versus c p m c decision from one thousand nine hundred four that it is a venerable principle that a court is not bound by a prior decision to fail to consider an argument or issue the later court the later court finds persuasive but let me ask about that first of all it was definitely squarely presented in isn't the charming betsy doctrine a variation on arguments with respect to the level of review and chevron deference i don't think so your honor i think it goes to whether the statutes can be reconciled and your honor ms does mckeown has issued several opinions explaining that the canons of statutory construction must be considered at step one of chevron in determining what the statute says not in determining what level of deference the agency gets paris guzman held that the two statutes eleven fifty eight a one and twelve thirty one a five are essentially irreconcilable and so it deferred to the agent of the agency discretion but actually the statutes are not irreconcilable if the court were to apply the charming betsy doctrine which is a very well established canon of statutory construction that says that you interpret immigration statues to be consistent with the refugee convention and protocol among other among other treaties then the statutes are easily reconcilable because actually amended eleven fifty eight a one and changed it to say that any alien it actually added the word any any alien present in the united states can apply for asylum so actually if the court were to apply the charming that's the doctrine which the parents guzman panel did hold something and you've got a slightly different argument on the arguments responded to and in the opinion i'm afraid we're stuck i'm looking at footnote tim yesterday where the court invoked for someone who's previously applied for decide has been denied and then has been deported that issue is still open that's exactly right your honor and i'm trying to figure out in this case what do we do with the testimony of your client found by i j king to be truthful that's right she had a plausible asylum claim when she came in the first time she didn't apply for  expressly left open the question of what would happen in this exact circumstances no no no that's not right that's not well let's read it clearly it's not what it left open but you might extrapolate what i think it is but  that case had quote no opportunity to determine how section eleven fifty eight to capital d might affect twelve thirty one a five in a case where those two provisions are actually in conflict and as your as your honor knows eleven fifty eight  ban if my client but i think limited to those two things of i'm just looking at the statute well what the stats you did was it exempted from being barred from applying for asylum anyone with changed circumstances the only categories of people who were not allowed to apply for asylum at the time were people who had missed the one year ban who had previously as applied and been denied or who could be deported to a safe third country to see if their country point is really irrelevant because that doesn't really happen but congress was doing in eighty days but the baseline there is where you've been able to apply and here i think the concern i have is that you've characterize asylum having been removed and now illegally coming back that's that's a very special circumstance well but again it brings up the concern that just fletcher is which is did she really have the opportunity to apply for asylum the first time the record reflects that she did not that's right she was sent out of the country this was a woman who had been subject to sexual abuse another another to cities in el salvador she is it was worth pointing out that she then went back to el salvador and tried to build a life this is not someone who kept trying to just come back to this country she got married she joined a church she tried to fight against the m s thirteen gang she tried to reduce the crime violent the gang violence in her neighborhood she joined forces with the police to try and stop the gang activity in her neighborhood and only then did a completely new circumstance with her life threatened by the m s thirteen gang and the life of her and her children it's only then that she decided to come here for example one of your concerns was this construction would result in only lawbreakers being disadvantaged but i think we've just run through various scenarios where that would be the case and so for example my understanding is that there are situations where you just decide not to reinstate the order for example so that you  w the order well respected let me ask you is that as a matter as a legal matter would that not be a circumstance which would then permit you to apply if the prior removal order were rescinded that would allow her to apply but that doesn't mean frankly that just doesn't happen it happened in the mail dando case because this court looked like it was going to rule against the government if they are can say it never happened so why did it have well my client asked for that actually in this case she asked for the reinstatement order to be removed and to this day we have not heard back from the government on that so at least in this case that's not a remedy that's our government maybe they want to that would be trial then in abeyance or rescinded or withdraw or basically not reinstate it that would be terrific your honor i'm hoping that they will agree to do that and there's certainly no good reason to keep this woman from from having us on this point and occurs to me that the promise or a promise for judge fisher's opinion was that the government would exercise its discretion appropriately where the equities were proper and not reinstated but this case tells me that at least in this case they didn't do as judge fisher expected them to do that's exactly right your honor in fact judge fisher expressed great concerns in his decision about situations just like this one where the equities were clearly in favor of the petitioner and expressed the hope in expectancy that the government would take that into account the remarkable thing about this case is that my client actually sent a letter to the government asking for them to rescind her reinstatement order just two weeks after the well can i ask you why the government did not do as judge fisher expected the government to do in cases the present strong act would do such as this one your honor the record is unclear as to what may or may taking up all this time in this appeal and we don't have an answer because one of the things that here is good guzman made clear or one of the categories of individuals who would still be able to be advantaged from the perrys guzman decision is if d h yes didn't reinstate the prior order so if we don't know whether they reinstated well we we know they haven't given an answer so i take on faith councils representation there and you've indicated you don't know of anything otherwise so it may well be that she would fall into the advantaged category left open by peers guzman but we don't know the answer to that because the government has for whatever reason chosen not to answer her requests so why wouldn't we want to know the answer to that before we proceed because without that this case wouldn't be in this position but de facto just means there hasn't been any specific response to her request to not reinstate correct no why why is that so because she said they just had it or some papers to sign didn't tell her what they were and then so do sign papers and you're out of here that's what she says and she was also a serious writer noted previously that had she known about  all of the documentation the records including from the two thousand proceedings as well as the two thousand fourteen proceedings at the agency at the initial level when she was being interviewed by asylum officers there was no indication that she has read any check of yours now i understand  entry and her deportation removal they did not inform her of the possibility of asylum they just kicked her out which strikes me as long fulfilling their obligation and strikes me as in a practical sense preventing her from a blind for as the government's point on me here is that to the extent there is some question as to why or why this her case because i think the petitioner here is some new to the court that if someone in her circumstances could not get the government or exercise its discretion to withdraw the state proceedings and instead put her into more to forty proceedings and who could ever meet the sort of standard but i think that claim is a look at the life of the record itself because it's her credibility or anything of that nature i think what i'm pointing the court's attention to there is just there are some things in the record that perhaps the government pas in terms of exercising its discretion to withdraw problem with the going the first time and therefore there's a reason to think that the first time around she wouldn't have applied for asylum but that isn't that is not what i'm for what did you what did you say was it or did you mean  at that time her claim was based on domestic violence and physical abuse claims tied to their parents as well to neighbors in two thousand and she said i would have applied for that at that time based on that claim on that basis up the fact that i was never given the opportunity to do so in two thousand and fourteen when she returned she then as she asserted i am in myself and my daughter both are in danger because we are being threatened by gang members of her being informants on was a source of fear or harm or anything of that nature in two thousand and fourteen when she was before and i thought an officer could have been another factor that the government that the da has weighed in terms of trying to figure out that this was one of those cases that weren't it's actually the exercise of its discretion and her daughter has been granted asylum correct your honor because your daughter was not present with her when she in other words she has our recent case in the east bay saying sure we're research that the denial of the right to have asylum based on illegal in tree would violate is through its own action attempting to amend specific provisions of the i a e a and because that's what it was doing something that is completely in the purview of congress that is part of the reason that it was acting action it's unclear whether that same result of image so it we have a situation where the mother and the daughter are factually in the same situation correct correct so the daughter gets to stay and the mother would have to go back till salvador despite being a no party it's important to keep in mind  never never land with the withholding of removal because it doesn't give you the same finale rights that asylum would give you correct well it doesn't give you the extensive benefits that it's hydrogen other words allow her to work legally in the united states i think i just want to point out what is important to note though is that is that there is a very strongly in clearly expressing for a congress timing lights that we have in the courtroom so i want to let you know your time is expired but i do want to give you an opportunity to sum up if you would like to do so i think just to point out it's a very kooky honor it is important to know status from a holding of removal withholding of removal you're still an illegal alien you're subject to a removal order you can be deported at any time to a country other than el salvador so if somebody else was willing to take or the government can send her away from our children you can work but in order to work you have to apply every year for a new permit from the government the government takes about five months to get the permit to you and you can't work when you don't have it so in effect you can hold a stable job it's completely different from holding a green card i'm very surprised to hear opposing counsel seemingly challenge the factual record below about what happened with respect to my client's first entry into this country in the in for the immigration judge the government stipulated to the facts that were stated by my client as to what happened to her the firm time around and it's in the record c a r t forty five is a transcript of the june first two thousand and sixteen hearing where the government said with regards to paragraphs one through twenty three of the declaration i would ask that those be given full weight and this is the government speaking to the government because it was our lawyer speaking but is me but the government by the government stipulated to that and that's in the record below so i'm surprised to hear that being challenged now the letter that we sent asking for the withdrawal the remove the resentment of the reinstatement order we sent that letter on september fifth two thousand and sixteen that's two and a half years ago we have not received an answer to that i'm confused by the counsel by opposing counsel's argument on the one hand she's saying that we don't know what the answer to that will be but on the other hand she's got a litany of reasons that seem to be invented post hoc as to why the government seemingly denied to no i don't believe so the last point i would make is with respect to asylum being a discretionary grant of relief that is true it is discretionary as to whether the attorney general grants relief it is not discretionary as to whether someone is eligible for relief section eleven fifty eight a one is very clear as amended by congress in one thousand nine hundred six that any alien any alien in this country has the ability to apply for asylum even though it is discretionary and as judged by the said in this court just two months ago in the space sanctuary quote it is the hollow of rights that an alien must be allowed to apply for asylum if another rule makes or categorically ineligible for asylum based on precisely that fact and