morning i'm lamar peckham for the petitioner i'd just like to make two points this morning one is that both points apply to this principle which is that the government should be held to their pleading additional charges that were filed so that's that's not an issue the issue is whether the government could go beyond those pleadings and introduce additional evidence that didn't relate to that to the facts of the convictions what i've argued so far is that this was a violation of the regulations or department of homeland security that but in fact it's it's more than that it's more than just a violation of regulation i also point out that there's a statute in the immigration and nationality act that that requires that the well he's not eligible for that because they have prevented because he committed another crime what's wrong with the government introducing him to defense against your claim well there may be other ways for the government to approach the issue of whether his application for adjustment should be pressure emitted but the way they did approach it was to file a new pleading pleading are required under certain circumstances and maybe they aren't under others but in this case there were playing style the eye to sixty one was filed and therefore under the regulations under the statute he was on notice that fees or the fact that we're going to be proven in order to show that he was inadmissible and not eligible for adjustment status mr laurie this disputed that does convictions could be grounds of inadmissibility and well it's never been shown that they anything but that was true but pleadings are not just a matter of regulation  statute they're also i believe and the court should consider in this case that there's a constitutional aspect to it in the government's brief one of their objections line of analysis was that there's no prejudice to him and i think that's an important point is that what's the prejudice well i believe that the prejudiced though it's i don't think this court ever directly addressed it in just context the prejudice is the same this district second circuit has determined which is that there is no prejudice necessary when the violation is based on a constitutional right and they'd in own regulations which concert concern a fundamental right drive from constitution or statute there it was the right to counsel under the sixth amendment as applied by the fifth amendment due process clause in this case the same amendments to the constitution apply and the sixth amendment has a right to be advised of the noticed are just part of nature and cause a charge against him that's what the statute does that's what the regulations do in this case they were defective they did not in fact advise him of the nature and cause of the charges against him in fact he offense that offense doesn't have to be grounds for deportation doesn't have to be part of the reason for the court take all they have to do is show them and if they show that i don't see the problem well here's what i respond to that your honor they the they did not have the burden to prove that it is inadmissible actually he had the burden to prove that he was  already the time in which he stated what relief he would be seeking was the same time that he pled to the notice to appear i mean it wasn't that there was some other time at that moment in fact the government could have stated what his objection was if they had one but it was his his burden to prove that he was that he was admissible and it in a different context  court ruled that when the issue is admissibility and the government offers conviction documents which they state are proof of the inadmissibility and if they aren't conclusive if they are equivocal the defense on that the defendant the petitioner the respondent in immigration proceedings he's met his burden to prove that he's admissible that's all he has to do  in this case you know i don't deny that the government could have done something different than they did that's often the case they have prosecutorial discretion but when they do file a pleading it appears to me that they should be bound by that pleading not just by the regulations not just by the statute but by the constitution as well thank you  dispute that he bought a passport the didn't belong to him and then for three years moved about the united states using that passport for various purposes getting it including getting a driver's license here in california i don't think there's any real are tangled up at the end but i think there are two different points here the first is whether as a matter of law the immigration judge heard in going beneath the record of the conviction conviction here in the northern district california for a lawful possession of a false identification document to find out what really happened to look at the conduct that underlay the conviction missed in his brief the petitioner upon was part chart of software in our brief should have addressed that decision at least acknowledge that it didn't it wasn't helpful to that should have been i apologize the court for that oversight but there is another board decision which was also not cited in our brief that makes it clear that there's a distinction between these kinds of cases i will give you a twenty eight jailer when i get back to watch and i found this case was preparing for this argument on saturday evening mr peckham obviously hasn't seen it either page five sixty here's the distinction when the ground of remove ability or the portability rests on a conviction then the board and the immigration judges may not go beneath the conviction to find out what happened the law makes that clear the case law makes that clear but when you are talking about a ground of remove ability under the immigration act that is conduct base that does not require a conviction it is permissible  looking at that kind of a provision it's principle to go beneath the conviction and the conviction documents to find out what happened of course that's only my first point my second point is is that a good result the board of the board  a conviction is that the board of immigration judges should not be in the basis of reexamining of perhaps even we adjudicating the guilt or innocence of the d of the defendant alien what he did they shouldn't be looking at the criminal conviction again defendants conviction in two thousand to find out what happened and i'm looking at that conduct a second thread is whether the charging document and this i think has been the main emphasis of mr perkins remarks this morning whether the charging document was deficient from the beginning because it wasn't specific enough and therefore nothing that was induced at the hearing should have been allowed him can the immigration judge fashion a hearing that gives the alien who is charged in the way this what the way is the law really was was charged in this case a chance to and i think i'll borrow a phrase from the second case you heard this morning a chance to mount his defense and you know if you look at the record in this case makes it clear that mr lowry of us had every opportunity to mount his defense there was no unfair surprise here you will not see in this record we have no idea what these charges are about we have not been given a fair chance to mount our defense you won't see that what you will see is agreements from this by mr peck and the immigrant and the ins attorney as to the content of the documents the documents that the ins relied upon were known to most of our rebus weeks and weeks before the merits hearing which occurred in may of two thousand and three you will see that the documents were admitted into evidence by the immigration judge without objection from this to pack  examination he was cross examined by mr peckham and of course most damning of all mr alarm leave us himself testify at the hearing and said three times pages one twenty four through one twenty six of the record yes i use that  your decision in sound of all lou makes it clear that the burden is on him to prove that he is admissible if you make that claim i'm admissible to united states you open the door to impeachment evidence that could be brought in by the government to show that you are not in admissible here's documents and we've got a detective from california ready to testify in judge thomas concurring opinion and sound of our lawyer went a slightly different way he thought that the burden shifted to the government to prove admissibility and in that case the results the same the government can bring in this kind of evidence as on a on a direct basis part of its burden to prove in this ability either way there's no requirement that the an the the the result which by the immigration judge admissible inadmissible is a fair one here though if the question is well was the charging document so poisonously floor that everything that happened after it must be tossed out i think the answer is it can be cured the lack of whatever lack of notice existed at the time of the charging document can be cured and that the hearing was a fair one excuse me run after notice of walk well if you accept my colleague that the language of the statute that he was actually convicted under contained no reference to false representation of u s citizenship or using that false representation for a purpose or benefit under a federal or state law there's no dispute about that so if if quote if the complaint is well that charge yes i did to that charge i was so convicted but so what the if and if the if the premises will that doesn't give me fair notice of why you think on the basis of that charge i'm going a think that is you your career acquired i think as a basic as a as a as a as a as an irreducible basis you're required to point to a fact that you think triggers the charge and you are required that is what is the relationship between flaws in the charge as long as you have one good count and the question of whether you can rebut a claim of  effect you are subject to removal because you entered without inspection you applied for adjustment of status i hereby find that you are ineligible for adjustment of status because the ins the d n c has now has brought in evidence of the evidence as long as the evidence that that is brought in is brought in fairly as long as no one first surprise as long as an opportunity to cross examine adverse witnesses as long as everyone understands what evidence the government is relying upon in that