incriminating response such that miranda warnings were required the answer is yes in two thousand and eleven nearly half of all federal prosecutions were for immigration related crimes and mr beilin swale it was ten times more likely to be prosecuted for such a crime then he would have been a decade earlier given his dramatic surge in criminal immigration enforcement as well as mr vallance well as heightened risk of prosecution the district court committed reversible error in admitting his sworn statement at trial i want to define the scope of what i'm asking for because i think that may help the court figure out what it doesn't need to reach we're not sane that the court needs to establish a per se miranda rule in every single immigration interrogation we're saying that if a person is being interrogated and they're not given miranda warnings and then at some point the government shoes is to prosecute them and they're being prosecuted at a time when there's have been prosecuted for either illegal entry under thirty twenty five or legal reentry under thirteen twenty six and both of those have an element of alien it and that's the the only thing that we're contesting here is that when he was interrogated about his alien edge times he had left in my white why we guessing about that because it was not in the record your honor so we don't know what the officers know we don't know we don't think that that's necessarily dispositive because the authority that the government itself has cited says that the officer subjected intent to the relevant but it's not conclusive so so if they don't know that he's that he's previously that he's previously entered the country then this may just thought of run of the mill kind of kind of interrogation that we do of immigrants all the time i'm i'm just curious as to whether your rule doesn't end up with every alien who's who's picked up any place in the united states at any time has to be given a miranda warning of some god i don't think it does your honor and here's why this only came up during his criminal prosecution if he had never been given miranda warnings and then he had never been prosecuted none of this matter we would be here i'm sorry i'm sorry so anything you say can be used against you in court or in any immigration minister a person you want to add a criminal proceeding and then they have the right to talk to a lawyer before yes questions you can the way i read this this is a miranda warning without reference to criminal and so you're basically asking for a reference to criminal it almost seems like it'd be easier to have a general up a case specific world based on what's in the interrogators mind we didn't we don't oppose that your honor if that's easier and frankly i am not quite sure why that is a line that i don't know why you're limiting what you're asking for and i i honestly don't know why either because essentially they are getting if they're if this is the form which i'm not sure of i'm going to ask him counsel they're getting everything except the word criminal that's right and  so you know for instance one of the things on the form however that i think is a little confusing is that the it says for instance it's very important that you tell me the truth the things that you tell me will be used in this and i think another thing to consider here is when we're trying to figure out whether this person would know that his statements could be used in a criminal prosecution i think it's important to remember that there's a a border patrol officer in green sitting in front of them green in the minds of many people is border patrol it's immigration it's not criminal and so i think that the types of warnings that would be necessary to really put a person on notice that they could be criminal criminally prosecuted is is all the more important because of that they need to not be told that you know you should tell me the truth it's very important you tell me that the two thousand and eleven incident follows a dui arrest and frequently when w and that of course is all civil civil proceeding you don't have you don't have a right to counsel and that that's not a criminal proceeding now why isn't why isn't that why isn't that the answer here but if they're looking they're just trying to figure out whether he's whether he's lawfully in the country so they can remove him and he's not entitled in fact a miranda warning would actually be incorrect in that situation wouldn't it he would be entitled to counsel of the government's expense that's right the the only thing here is that there is this problem essentially there's no such thing anymore and within the last decade there's no such thing as a purely civil interrogation and here's why half of the federal criminal docket right now is immigration related cases in which edge is an element of the crime you can't have half of the federal docket the immigration related crimes and then take someone to room interrogate them about their alien age and say well that's not reasonably likely to except that the only thing that they two thousand and eleven sort of confession that he's they from mexico has to do has to do with with future actions but is that sometime in the future that he's going to violate some other law other than the one for which they're investigating him at the time it's not correct in terms of the warnings that he was given about if he comes back that sort of thing are right i mean in fact for mr balance whether sanchez i think he's convicted of is not anything in two thousand and eleven it's something in what two thousand and twelve or two  right and and and your problem is that they have used his admission that he has from mexico given in two thousand and eleven as part of his two thousand as a conviction for the two thousand and fourteen actions that's correct so it's only that at some future time i he might commit some other crime in which the fact of a alien that would be important that's correct and i think that you know your honour's is maybe getting to one of the issues in this case about how close to sequence have to be does a month and i'm going back to question  as just a minute ago which is what kind of a what's what kind of a warning then do you think he was entitled to i think he was entitled to a warning frankly i would agree with that word lie the he was entitled to basically a warning not that he was entitled to a lawyer which ok persons so he does have those due process rights who isn't have the exact same rights as correct and i think one of the problems here too is that when the border patrol officer says this can be used in any administrative proceeding against you that implies that it can't be used in a criminal proceeding if it could be used in a criminal proceeding then it would seem natural that the warning would include that so so the us and its court then to craft a new warning since we can't use miranda because miranda would be wrong what  is it that you want what is it that you want that the border patrol to say we would want the border patrol to say basically you should know that this can be used against you in both a civil and criminal proceeding but but you have i think one thing but what i'm saying ultimately is this if the government is going to prosecute the record numbers of people they're prosecuting for immigration crimes they have to use either miranda as the person or use some other evidence now the government gets misspoke your honor i don't think you misspoke i think you're correct that our position your honor is essentially that if the government wants to use these for purposes of prosecution frankly at any time then we believe that a miranda like stephen that's almost like saying well you know you have to have a warning on your income tax return because it could be used in a criminal prosecution if you tell a lie right well what's the difference and that's actually exactly what the supreme court said in or similar to what the supreme court said in madison that was an income tax situation and the supreme court there said look there's no there's no distinction between civil and criminal proceedings even the civil proceeding it's better it's a better practice to give miranda where it might be apologize if i seem inconsistent your honor but honestly what we're asking for is that if the government wants to use a sworn statement in a criminal prosecution and rather than getting the person's versity ticket for instance then the government needs and effectively what ms hartzler has requested is a break from that unbroken line of cases to the extent that there's something different being requested here this sort of miranda light morning that's nothing that was i identified in the the form itself identifies that it's for the record of sworn statement and proceedings and or section two forty one eighty five of the act and then in the actual warning itself it identifies that the warnings would provide with the purpose and consequences of the interview was the purpose being the civil deportation context on and then the next two pages eighty four is a different type of form that immigration officers use and you'll see its title affidavit and what is identified there is that that form is used in order to obtain a sworn statement in connection with an investigation into illegal entry into the united states so this goes into the separate dual purposes of an investigator when it's a purely civil administrative removal perceiving the form that was used as the one in yard eighty in two thousand and twelve subsequently when full miranda warnings were provided that they are eighty four a separate form was you for miranda warnings were provided in prosecution but at that time likely in light of the number of times that the defendant had been removed the border patrol agent that was interviewing the defendant was likely concerned that there was a potential for criminal p if the officer things there's a potential for criminal liability for future reentry well and that's not in the record on in this case what we know is that this form was used in two thousand and twelve after and it had been removed a number of times that so that means that at least in the officers it's reasonable to think that he might be next because we know that there's many times that  people enter and they're just sent back and there's no forms made no sworn testimony and they just are sent back across the border and and then it gets more serious due to the number understanding that's correct the border patrol agent would have a reflection or an understanding about whether question would be reasonably likely to listen and listen and incriminating response that hinges on the specific factors and specific history of the any particular constitutional provision requires it that when you're using this form and acknowledging that there is a potential for a criminal prosecution why wouldn't the government just stick and criminal in that line i mean it seems as though as i mean you and i reading this because we understand the constitution read this and understand the implication that someone has just come across were maybe doesn't know that much about  constitution doesn't necessarily see the implications from all of this and i would note that that's not the only sort of miranda deficiency that's contained in the mornings provided on the r eighty for example there isn't a right to an appointed attorney if the individual indigent sweeping rule that mr beilin sleepless sanchez has requested would be wrong because it would apply in the context for example of an immigration judge an immigration judge an immigration purely administrative and civil proceeding would have no obligation to inform an a individual before him that he has a right to it so that her on page eighty four the he has the right to remain silent anything can be used against you in court or in any immigration or administrative proceedings and doesn't actually use the word criminal document eighty reflects of the purpose of the interview was in connection with the deportation or removal proceedings of the defendant that purpose is can grow it was what actually happened so  this court has said is that the close sequence of events can inform what the purpose was here the close sequence between the statement and the removal it was on the same day august eleventh of two thousand and eleven informs that the purpose of this interview was a civil deportation proceeding the same is true when looking at the actual consequences of the interviews awful consequences of the interview with that the individual was deported and removed and i'm just curious about this again  consideration that the individual conducting the interview had a dual purpose potentially a criminal investigation into determining whether thirteen twenty six prosecution was appropriate and then a second civil investigative purpose the document contained it e ighty as well as the testimony of agent maher that was actually a deuce to trial all reflection is consistent with what actually happened that the purpose of the interview was consonant with a civil administrative proceeding i do want to address sort of how this question how the court can avoid this question entirely as well because even if there was some error which there wasn't in this case it would have been harmless and that's for two reasons in our briefing we identified the judicial admissions that counsel made during opening closing statements which are binding here and the admissions were not just that the united states has proven beyond a reasonable doubt that the defendant is guilty but the admission was he is guilty we don't contest that and that was said twice both in opening and closing and beyond that and i apologize this is an oversight on my part i didn't actually identify this in our briefing but beyond that there are other documents upon which the jury would have found that the alien age element had been met so that we are two forty six is a document that is was government's exhibit three and that's the notice of intent decision to reinstate the prior order on that document mr vallance waitlist sanchez during his deportation proceedings was told he was an alien subject to removal about three quarters of the way down on that document he had an acknowledgement in response opportunity and in that acknowledgement and response offer to nitty he checked the box that said he did not wish to make a stupid statement contesting the determination he signed it and they did it august eleventh two thousand and eleven that fact makes it so that the evidence in this case was beyond the mere fact of deportation which was found to be an adequate in order to use lopez that's the line of cases that ms hartzler is relying on today did suggest that there was not harmless because there wasn't adequate evidence in order to prove alien it in this case it was more than the mere fact of deportation the jurors had the fact that the defendant in two thousand and eleven chose not to contest the determination even though the form provided that you may contest this determination by making a written or oral statement to an immigration officer that combined with the judicial admissions provided by counsel make prove beyond a reasonable doubt that any error in this case the government seems to be relying on this theory that the form says what the interview is about first of all that's not the record and i don't know that that's necessarily something that we can rely on and here's why in two thousand and twelve they use the form with miranda but he wasn't prosecuted and as we pointed out in our brief there's not necessarily a lot of consistency in terms of how these interviews take place and i just don't think that there's enough here to say that we can rely on the tell whether this person is going to be criminally prosecuted or not and even if that were the case that for instance in two thousand and eleven they didn't have the intent to prosecute him in that moment i think as we've shown through our would have been in direct violation of the district court's order and we it would have been completely inappropriate to bring that up at trial it would have been completely inappropriate to question agent lara about all these things and what was his motivation when it was already found to be inadmissible document and in terms of the judicial admissions your honor what i would just point out is the government has never pointed to an example of a situation where a judicial admission of generalized guilt is enough what happens is you just did a judicial admission is a concept that only is invoked when for instance someone admits a specific fact or a specific element and that didn't happen here and in fact in closing argument the government he said well that's all nice and good that the defense counsel has said oh yeah he's guilty but we still have to prove every element of the of the offense beyond a reasonable doubt and so there's just no way that any sort of admission court in during the trial was enough for the government to not have to carry its burden i also want to briefly address on the point that counsel brought up in terms of the form at page two forty six counsel is basically stating that this is pretty much the same thing as a person admitting in his sworn statement that he is an alien it's not and here's why you have a form that basically doesn't say i am an alien you're saying i do not contest that the government can remove me and that's different and one of the reasons why it's different is because it's not uncommon for people who do have some sort of very complicated citizenship cla met be deported and then try to prove their citizenship claim from outside the united states so as the government itself said in one of the one of the arguments i believe at the motion in limine the government said we need this two thousand and eleven sworn statement it's critical and we need it because it's the defendant stating his alien age from his own mouth and that's why this is not harmless error if this was such a great document two hundred yard to forty six then the government would have relied on a closing argument and they didn't they didn't have any sort of reliance on it they said themselves we need this two thousand and eleven sworn statement and that's why it was important case to get set up for the next argument thank you