required to obtain such advanced consent under this chapter and in prior act mr martinez was such an alien who did not require the advance consent of the attorney general prior to his reallocation for admission your assumption and then there's an exception for those who don't meet the can right right but is it is does the government have to prove in every case that the exception doesn't apply i think the government does have to show that that the exception d apply or that they didn't have the consent but that your client didn't have the consent he didn't have the consent but the exception applies but that mike i guess we're trying to get at is who has the burden of raising the issue of whether the exception applies until his reentry in two thousand and five a period of sixteen years further they and the government entered a statement by mr martinez stating that he had just three entered in this was his first reentry so that was sufficient to show that he had been gone the turn on doesn't say go on the record the period of time it speaks rather of whether he's required to get the permission to apply for reentry is not a legal question i think it's both i think there is a legal issue as to whether or not this particular case didn't a problem the judge didn't agree with the proposition that being on that period of time triggered the exception to the statute right well that's there ok the judge makes a factual determination you can challenge that but i don't understand what about instruction is defective or what the jury supposed to be told well we argued and it's our position that the jury should have been told if he was gone the requisite period of time if they made that finding then he wouldn't have they could find that he didn't need the permission case it might lose however that the problem with looking at this question and it's from a harmless error is that i ask this court or the even the district court to place itself in what the grand jury was thinking what they might have seen what might have been presented to them and the government in this case  was presented no evidence to show what they presented to the grand jury is that you are willing to accept it as not a structural error for purposes of what a jury finds beyond a reasonable doubt is it really hard to say that a grand jury operating in a much lesser standard without a requirement of unanimity could have made the same finding and would have made the same finding the evidence available logically if we see if we're willing to close our eyes to that for the jury i can't imagine how we can close their eyes to that the grand jury i think the problem just closing our eyes to it as far as the grand jury goes we have no idea what they saw and the grand jury's function and their right is to pass on certain elements of the offense so we don't know what decisions they made and the government presented no evidence of what they show to the grand jury what they did for all we know in this hypothetical world the grand jury could have decided that because mr martinez had been gone for twenty years they were choosing not to indict him on thirteen twenty sixty that's a function and a right as the grand jury and so given that i don't think visa application requirement onto the attorney general's permission provision of section thirteen twenty six essentially the defendant who never availed himself this affirmative defense is trying to force the government to disprove something he never raised the basic argument boils down to this after someone who has committed a particularly serious aggravated felony it's lawfully deported if you nearly waits a certain amount of time whether it be five years ten years or twenty years he can return with impunity disregarding and it 's possible the immigration law could still provide him as saying that it is but you can imagine a situation where somebody writing immigration law would say ok enough time has passed let bygones be bygones and if that with the case then presumably defendant would have something more to work with than you think he does so are you really arguing about the state of immigration law that's true maybe that having the immigration law the way the defendant says it is might be illogical but that doesn't mean it's not that way i mean i grew with the proposition it seems odd to say wait long enough when you're home free but i've seen stranger statutes in my day so how do we know that there are thirty immigration laws and right well we can look at various provisions of the immigration code for instance section one one zero one eight forty three says that it defines what is now headed felony the defendant qualifies for that and section eleven eighty two eighty nine eight states  there is a twenty year ban on various applications in addition we have the whole section two twelve which basically imposes requirements for people to reenter this country and accompanying that are a bunch of federal regulations that further interpret these and provide exact examples i in this case the defendant's own actions show that he knew he lacked her missions to reenter the united states first he was found about fourteen miles north of the border in a very treacherous area of the to cutting mountains he was crouching under the bushes with a group of ten other people it was in the middle of the night when he was but it doesn't say that so so i'm not sure we can infer from the fact that he snuck across the way he did that he probably didn't have permission or permission to apply for entry but i guess i think the whole thing reverts back to the statu facts don't seem to be much in dispute here right but they do indicate that the defendant himself realized that he lacked this permission he never applied for the commission essentially in the case of surveillance his florists it sets forth a two part ordered alien to reenter the united states and the first step of this is applying to either the attorney general or the secretary of homeland security for permission to reenter if that permission is granted and then the second step is to plighted state department to receive a visa in this case there's no evidence in the record that the defendant ever took the first step which is applying to the attorney general or the homeland security secretary no evidence that the statutes ambiguous in the defendant gets the benefit of the doubt is there what do you think of counsel's argument there are there are enough facts in the record to support the fermat of defense  regardless of how long the defendant stayed outside the united states which frankly we're not sure we have his claim that he remained outside and we have an absence of immigration contacts in that time who knows if he could have snuck in resided here and not generated any arrest reports but even if he did stay outside for five years or longer he still did not satisfy the requirements he is still guilty of the three hundred twenty six because he still reentered without consent and we cannot grasp this he's the application provision on top of things i understand that you're saying that the proper interpretation of immigration law is he still needed consent but but the argument here and i just wanted to get your response on this assuming that there's a question about that which i'm not asking you to concede that there might be some free pass after five years then you get into the question of who has the burden at trial and and the government has to prove  case beyond a reasonable doubt obviously so is there enough evidence in the record to support defendant's argument assuming that it has any legal legs there is not essentially the government did prove that something that the defendant has to do but as i recall the way this works that they have to raise the issue there has to be a factor so i thought that was where the inference that that puts the matter at issue and then the government still has the burden of overcoming it by prove beyond  reasonable doubt the defendant doesn't have to prove beyond a reasonable doubt that that the exception applies so so i want to try to hone in on his whether you think there's any evidence beyond the legal argument and i ask counsel the same question and she said that she thought that there math will tell you that's a certain period of time and no evidence of him being here in between so if it were true that all he needed to demonstrate is that he had been in the country for a certain period of time there was enough evidence for a jury to reach that conclusion wasn't there well ok if i'm trying to make the question as simple but as i as inescapable as i can it seems to me if you give an answer other than there was enough evidence i got a hard time thing out what that answer is based on because you've got to accept the premise that if they're their legal take is correct well ok he probably wasn't in the country during the time of the jury could have determined that and the jury should have been given the basis to determine that the jury wasn't given the basis to determine that so you've got to go backwards and rest on the legal question which i've assumed away in my question right so if you do in fact assume away the legal question if you accept the defendant's take on the law then it seems to me it's inescapable there was a problem here because the jury wasn't given the opportunity to pass on the factual question your position i think has to be there wasn't it is the legal one that is that the trigger the legal requirement isn't satisfied by being out of the country for a certain period of time that's right if we do you assume that merely remaining outside of the country is a complete defense and there was no evidence of the defendant was in the country for a certain amount of time so i will concede that but the legal premise is still flawed you know we understand your point and i think you thank you i think that the question gets confused with whether or not mr martinez had permission to be here we can see that he did not have permission to because reside in the united states there's no question he didn't have a visa our position is that that makes him guilty of  step process there are certain classes of aliens who may not have the size but do not need the consent of the attorney general to reapply for admission which an entry is after a subsequent deportation they may be guilty of thirteen twenty five now also don't claim we had permission from the attorney general your argument is is purely that the law didn't require him to have yesterday and alteration let's hear the arguments that he didn't need that consent which makes him not guilty but at the same token if