your honour's even if you were to assume that my client admitted to having possessed some marijuana either in mexico or in the united states of course he denied that at his removal hearing although even if you were to assume that to be true based on his sworn statement my client was a lawful permanent resident who had taken a short and brief and innocent trip to mexico and he was detained in the port of entry coming back into the united states according to the government very very small what they would call an unmeasurable amount of marijuana was discovered in his car and my client according to the government's version of what happened that method having possessed marijuana in the past both in california and in mexico i believe that your honor that even if we accept all this is true it violates the equal protection to order this man removed it's just that it was a completely fortuitous thing that he's discovered in mexico with the marijuana if he had been discovered in california with the same very small amount of marijuana under california law it would have been the one hundred dollars ticket that he would have had to pay but we have cases that say that someone destruction eight u s c eleven i thought you were making a constitutional argument that this is somehow an equal protection violation is that your argument or is your are you making a statutory error you rant well i'm making both arguments for honor i'm  the well i don't mean you personally have to not make that argument to the board of immigration appeals correct that's true your honor but the ribbons case where where the board of immigration appeals clarified that the burden is on the department of homeland security to to establish to prove that a lawful permanent resident returning from a brief visit abroad the government bears the burden of establishing in the first instance the lawful permanent resident should be treated as an arriving element and it's no small matter in this case because i know why you conceded so readily that your client didn't raise that argument to be the way i read the whole situation i think was unfair that that's what the argument is he's saying he's saying that it was not sufficient evidence or in statement should not have been sufficient it was not being because it was contradicted by his testimony here right so you can take that and make it reliable decision that's what he was arguing and what the i mean that's the way i see argument well i mean my argument is that it's it's it's unfair to treat a lawful permanent resident and there just isn't isn't an argument that you deal with an immigration law right well there are no self protection in the process you know we have to look at the statute we have to look at the arguments that were that were made or not made to see whether their way do not wait to determine whether or not we have jurisdiction right to consider the argument right and i you know i think that well  issued by the president that's true well i mean if we should ask the government there their feelings but i think that if the government was willing to have the matter go into mediation there was according to the government they discovered us very small unmeasurable as they call it amount of marijuana in the in the car and because of that the my client was questioned at the port of entry and according to the government's version admitted having used in possessed marijuana on a couple of different occasions but like you say your honor i mean he's never been convicted i also think there may be an equal or there is an equal protection argument because a person who has been convicted and then gets a conviction like this expunged would be not be deportable or inadmissible at all whereas a person like my client who's never even been convicted can be banished for life from the united states i think it sort of shocks the conscience in a way so i think there's that due process argument but i do believe your honor and i  jane shafter again for the respondent we have reviewed this case we have looked at this case in light of the president's memos we've had conversations with the department of homeland security about this case and because the alien here is in mexico when when he was apprehended at the port of entry he opted to return to mexico rather than to await his immigration hearings and then again return to mexico after the immigration judge rendered his decision unfortunately there's nothing we can do for him now in terms of i don't understand that why is the fact i mean deported him so if he were here then he'd be  his appeal but he opted to return to mexico and in order to qualify for relief based on his u s c child his u s citizen child he has to show continuous physical presence over a certain period of time and were guards most of how his decision to to pursue this from mexico rather than from detention in the united states his trips to mexico where he admitted  d using marijuana would have broken that continuous physical presence so i understand his choice was to stay in detention how long had he been in detention he was only brought to the united states for for his hearings he was not detained for any lengthy period of time so then his options at that point was to stay in detention while that's for the two years or more that his appeal takes his a s or to be free in mexico not an ideal choice but but a number of aliens and that in fact in the first case the alien opted to remain in detention and eventually received a bond appealing this release this has been for two years i mean i mean because of the length of these proceedings it's possible that he would have been eligible for bond that he would not have had been in proceedings for for that length of he would not have been eligible for relief even had he remained in the united states your position it sounded like that's what you were saying because of the nature of what he admitted that he would have helped him to stay but i i'm not sure if that's what you were trying to say oh sure so you know i'm sorry the admissions wouldn't necessarily affect his eligibility for this case is the admissions are not not part of the right it's the fact that he's in mexico and he can't stablished the physical presence and that his first trip to mexico the first trip where he went back shortly after he received his lawful permanent resident status and smoked marijuana at a party in mexico and then tried to return to the united that have to be he's certainly free to file a motion to reopen alleging ineffective assistance of counsel there's a there's a question as to whether he would be able to establish that he acted with due diligence in pursuing that ineffective assistance of counsel claim it's been some years now since the board rendered its decision ordinarily a motion to reopen has to be filed within ninety days unless he can show that he acted with due diligence and it sounds counsel  that there were discussions with his client about ineffective assistance of counsel claim and he declined to pursue it so it can't even are he couldn't even argue that he only just learned that he may have received is a bit of a struggle here because it was a measurable amount of marijuana that we're dealing with and at the very outset of the case sort of affects my perspective on the matter particular because i come from the state of washington so if he was entering the country from canada and he was going back to his home state of washington and had a measurable amount of marijuana in his car because that also the the analysis has to equal protection he happened to be going to california and happened to be some sort of a crime in california but i don't see how the fact that he smoked some marijuana in mexico alters the analysis right and it's it's not that it's not a distinction between the california law the oregon the washington law and it's not that he necessarily that he smoked marijuana in mexico it's the that the federal law twenty one u s c eight forty four a he violated the federal law by doing what the government itself is saying we're not going to in fact under the cuomo unless it affects one of the eight categories in that memo is not going to it's not going to bother the states in the way they handle marijuana matter and i apologize when you asked about the point of that the government itself is saying that in states where it's legal they're not going to bother them unless there is it affects one of those a point of emphasis that the government thinks it has to act right but but here the immigration laws govern who it can come into the united states and who must be removed from the united states and there are different different standards apply to an alien who are outside of the united states and seeking admission into the united states regardless of the state whether i do think you know i said that fairness doesn't enter into the immigration law because you see so many of these very hard cases this is  you're saying you're not even going to go into mediation and kind of work it out we don't know for sure whether he could meet continuous as that's now been litigated so i can't agree with you that for sure he couldn't meet that well and certainly that hasn't been litigated i can assure you though i have had conversations with the chief counsel's office at the department of homeland security i've outlined the the equities in this case with them and their position now is that he does not fall within the president's the the d h s s memos because he's in mexico those memos are about removal priorities because he's not here already been removed he's in mexico he doesn't know how he didn't explain that at the beach and now i see what you're saying that it's the exercise prosecutorial discretion that permitting department to decide which cases are priority but there's nothing really for them to exercise their discretion on in this case because he's already outside the country so he's really left to bring emotion and your position is that mediation would become helpful with respect to direct prosecutorial discretion would it be equally unhelpful or not to discuss the possibility of a leap filed a motion to reopen on the basis of an effect of us and we certainly have no objection to his pursuing such a motion but we cannot tell the board how to decide such a motion no but it might make a difference if the government doesn't right and there have been instances i think in my other in the past where there's been a joint motion to reopen which richest often favorably view they're there to the that the basis for the ineffective assistance of counsel claim would be that he did not argue in his brief on appeal to the board that he should not have been charged as an arriving elian but the board wouldn't have jurisdiction or that he would have been advised not to leave the united that's  certainly open to exploring and mediation i mean the like i said we can't tell the board how to decide but maybe we can get d h to agree not to oppose a late filed a motion to reopen there's also an issue and i haven't researched this so i'm not sure of the status of the law the fact that he's overseas may affect his ability not overseas but in mexico may affect his ability there i'm not certain of the status of the law in the departure of our and would need to to look into that as well there's a lot a lot of issues to be considered with this case that maybe we should send it to mediation you can look into it maybe there's no relief at all that maybe there  not well no we do not concede that that he argued that he should not have been charged as an arriving early and he there's a difference between the argument and we see it he argued that the sworn statement that provided was insufficient to establish that he was inadmissible that's different from questioning d h s s charging authority whether they should have charged him as an arriving ilian versus an alien who is remote and i understood your are your comment argument before but the board wouldn't have had jurisdiction to consider that argument because they don't have jurisdiction to weigh in on d h s s charging decisions so even if he had them we get back into the i understand that the difficulties in this case congress has drawn the lines where they have drawn the lines because he was outside the united states seeking admission to the united states  fact that he admitted having committed an act which constitutes the essential elements of the federal drug offense renders him inadmissible thank you southall mr fan you have a little bit of time or m right and i will look into doing that your honor the other thing i want to say in response to what judge shay said about the equal protection argument of course and when when the state of washington marijuana is legal and i believe the federal government has agreed that not to apply federal law in states that make marijuana legal even in california have they done that with respect to marijuana in one of those states rights has work to do with someone who's on a arriving in or returning however you want to put it that's an interesting question but since i don't practice in washington i really don't know the answer  the last thing i want to say real quickly is even in california i believe the very small amount of marijuana this individual may have possessed would just be an infraction which in immigration law is not a crime at all not considered to be a crime so based on that i don't think that my client was even properly found out of all the question i had i couldn't find a thing in your brief as to whether or not that now that he had which would be a violation of even california law i don't think it would be but i don't have any research on it it wouldn't be now although at the time there would have been because california law was changed just in that the question is whether it's a violation of federal law directly because that's the way the case proceed that's what made him in a mess of all was that he admitted to facts that were in violation put him in violation of a federal statute even if there were no state involved think i'm not sure why it matters what it would have been treated as under california law well it matters what the element lead elements he actually admitted to because we've had other open to mediation if the panel chose to order this matter into mediation to see if we can work something out that would be fine with the petitioner thank you very much the case just argued is submitted and we