the reason i say we i don't think the court needs me to spend an entire a whole lot of time in on this case because this case and mr mollison his case involve the exact same statute and the exact same claim of equal an equal protection violation like the part of this case was a petition for review case the second circuit granted the petition for review the second circuit now has to deny the petition for that's the clear thing that needs to take place in the  court it consume most of the oral argument in the language in the opinion you're already been consumed upheaval argument but no the in the oral argument needless argument with the justices on most all of it to my read was what's the remedy here how can we find a constitutional violation and have no remedy and so the justices explore that a great length and then in the decision they don't give much direction but they do remain and so are they close to do instead was and what i read into the oral argument the is that they were exploring what the government had suggested in the breeze and it was it was quite in the end that's quite simple the the first question before the court is what to do about these if congress had been told that this was an equal protection violation and you can't distinguish out unmarried mothers as you have done what they would have done is they would have established the general rule for all so the general rule for all becomes the rule that's the ruling that's the ruling of the case now there was an exception that existed for sixty five years for unmarried mothers but they only had to show one year continuous presence and the argument that was presented in our briefs and discussed in the oral argument was each can't undo that you can't take that away so that's what we read into that question the supreme court's decision the vast majority of the remedy portion of the supreme court's decision deals with that group of people what do you do and how do you decide between those two available options the statute at the time that mr mallison tannen was born in history being served as robbie was born is it ten years or is it one year and those are the only two out second circuit asked for supplemental briefing on this issue it is not your own so your view is there just two options the supreme court's clear those two they chose to level down speak whatever actually said there are only two options and therefore going forward we have equality historically we have an equality we're just going to exception for unwed mothers into ripping into the mineral displacing which you know one a seven covering married couples and fourteen one on a covering on very fathers we must therefore leave it congress as a congress is like going forward if physical presence requirement ten years one year or some other period so in that sentence and in the sentence that appears at the end of the decision at seventeen zero one of the supreme court order going forward congress may address the nation and settle on a uniform description that neither favors nor disadvantages any person based on gender so that's the set that that is their transition from talking about the one thousand nine hundred fifty two nine hundred fifty six period now they're talking about what congress can do and they're looking retrospectively and prospectively congress can fix both problems congress can say going forward here's the one standard and they can choose what's the state department doing right now are they holding in abeyance people that might benefit actually there are relatively few claims of this period of time but you but who are for for the representation of the supreme court worth is it actually there are thousands of kids in this situation because american business women and men aren't in so the current applications typically this happens at the before that date however those people became citizens at birth we can't take it away and that's what the discussion that you see in the oral argument that's what the discussion you see in the government's brief indicates so you have this the correct remedy is ten years for all for that period of time and those people are getting exactly what congress would have intended not only that they had no expectation they had no reliance on anything other than that however the one year people got citizenship at the time there's just a there is a veneer issue i have disabuse me of it from wrong but this this this this individual it was born just months too early because then he moved the us within his first year had he been born in the united states we would have no issue he'd be a citizen mr vase or yes that's correct then his father by just one year loses under the old version he would have been a citizen had that one year not occurred right  certain yes and he's understandably then by these few months differentials both by his own birth in his father he applies to be a us citizen but then from his past comes in this prison when he was twenty years old he had more than one conviction permanent resident so even adjusting your status is readjusting his status to make up for the grounds of the portability right at that there but all these things had to coincide for him to be in the predicament where he is now where ice is saying we're going to remove you not every single one of these had to happen he he might be able to change a status based on the miss prison alone correct slithers far more than that he could have become a citizen before this time ok there's an relevant and i may get to where i'm getting what are the where in the record will i find the underlying facts for prison what was it a heinous felony that he concealed what what was the felony that was concealed i'm i'm actually trying blackmail i'm it's in the record i just don't recall o one twenty two g at seventeen fourteen seventeen j later he pleads to possessing a gun and that's a felony because he had a prior felony which is miss prison no no no the grounds of movability was i'm asking you what the ground for the one thousand and two g conviction was what was the prior felony that made it so he couldn't have a gun i think it was the misprint aliens allowed to have a gun at all o he that's the provision under nine twenty not to bust i'm not confident i know the answer to that question mistrust ok so we don't know the facts in the midst prison which does relate to whether it's a c i m t at least tonight circuit second circuit they might see there was some room we don't really know the facts of the gun but it's fair to say this guy other got a fence the key with the miss do you want to talk about this person now you can well i'm actually asking you for record what were the facts of the nine twenty two offense that is the aggravated felony that means he cannot get a waiver and or what were the facts of the miss prison that we've got to conclude legally as vile or morally outrageous i did not spend a lot of tanya at that given that he conceded is rebuilding the basis of that and you can see that  then he's as far as i can tell he's got one felony in this prison we don't really know what it is that over ten years later he has a gun which by virtue of them is prison he couldn't have he's then applies to be a citizen and all of a sudden now he's getting deported and there's an equal protection violation based on his deportation but he can't get relief it's just the saddest saga of just misses is how i am looking also in town and missed by twenty one days right so i would say that his situation also let me just then one i mean you do have enough time because we have extended time would there be any reason to think that when he pled to the nine twenty two offense he was told oh by the way now even though they're just it will be an equal protection violation you conceded those that conviction and conceded that to make minimum removal and he did not argue anything associated with a defect in the underlying conviction or ask for time telling that it all looks like you are here but guess what it makes when you apply to be a citizen it turns out they're going to turn around try to move that isn't that when i speak and move the proceedings is when he went in to try to change to be a citizen no that's not my understanding my understanding was he it was after his conviction for the nine twenty two offense that he was put in proceedings but i guess that's something that really doesn't get developed in this record so i didn't look closely and maybe go to the c i empty because we're joining a split either deceit so concealment deceit crime involving moral turpitude that's already in the president of this court and you are bound by that precedent now that's a simple way of looking at it i encourage you to go ahead and look at the at the robe of syria were decision because it makes a lot of sense as well and here's one the original decision and sloan on which this kind of generated the border recently held in a case where dropped a single paragraph about a multiple crime that immediately preceded it in sloan's case forty years later after a number of decisions by a number of courts of appeals had said that doesn't quite work for us and after the board had help we don't look to the underlying offense to it's got to stand on its own so you look at the offense as it stands on its own and you have concealment and felony and that's it you've got those elements and the question is does that categorically become a crime involving moral mr prison is rarely if ever charged as an initial crime something more serious with a more serious punishment is charged and then you work up this plea to miss prison which is usually a much lesser sentence in the federal system it certainly is a much lesser sentence with a ca so it does a lot of times the underlying fence want to be a crime of moral turpitude but people are pleading thinking they're getting a better deal but at least for immigration consequences it's actually much much worse deal but i don't know that that affects the analysis it does seem it does seem counterintuitive the maybe go to the point about being warned about immigration consequences at the plea hearing right and that and that would have to be developed in a different context likely to a large extent that has to be developed back and forth the trial court if you're going to be arguing that there was a that no you're not that i'm a lawyer so what we have here is a situation where this court's precedent tells you that the cia and the ruling in this case is correct it is a  adopted you see that in this court's analysis in small and small and that's a that's a hard line for me to fully understand so it's not deception that turn something into a cia empty because if it were a thousand and one would apply so it's something more than deception and a missed prison always has the something more is all i can say is the word said it's got it it's got the seat about something about a felony they said and they didn't say it just has to see  underlying crime the drug crime so it all i can say is that is that the standard appears on its face to include include more the supreme court however didn't didn't have a pause the supreme court i believe that a thousandth of the board has said that a thousand and one does not involve more alter but i know i'm not asking the board i'm asking your view having just told me that the supreme court's saying the crux is deception an element of deception the board can within the context of the immigration statute which jordan versus george did not involve the board can say can can refine what in what moral turpitude means within the immigration stage the border originally said mispresent wasn't that's right based on a reason that the is now to say adverse because of a circuit opinion as far as i can tell and now you're saying we have to defer to that yes in this case the board specifically acknowledged the ninth circuit's decision in robo syria and said this isn't the ni rolling those things together the board is clearly in this case standing behind its own president with respect to the gun as the you may know this is the government been encouraging the supreme court to get in and resolve this or is the government opposing search you're already on these cases the government opposes you're sure in almost every kind of case this issue would seem to be very unfortunate it wasn't that judge calibrations remain in the second circuit precisely because as to immigration we need uniformity why would the government do you have any thought that the reason we would i can't speak for the solicitor general united states but i can tell you that the kind of rationale that we put forward were analyzing these issues involves this is something the board can fix this is something you don't need the court of appeals to fix this tells us what the board thinks you know and that's the detail calibration was asked and he said look the ninth circuit has since disagreed with you you haven't responded what's your response here's the response now it's an undue non presidential decision but they specifically say i think prospectively going forward what they meant to say was all applications that the government decides in the future well apply a five and two year rule that means that his father morality possibly have thought that would apply to someone who is under the tenure fix i mean the way i read it they excise out the one year that there was given this the way they end up looking at this exception this windfall to children of unwed mothers what basis is there then for saying someone your client's position should get a year requirement going forward should apply the five year rule to children born to unwed u s citizen mothers i read that to say children born going forward are in the five year look we need to know you're not getting the one to children who are born because it's no longer the books it's for to know and she explained what rational purpose would be for applying the five year statute to someone who clearly was under the tenure statute according to the law at the time how does that remedy the discrimination because the discriminate may nation was never between the ten in the five year rule was between the ten in the one year roll rule and then later the five in the one year rule so what does that have to that still doesn't remedy the discrimination because forced but forced to the court but remember that the prominence if you know the court said going forward there has to be an application the law which is free from gender discrimination and there's no perfect equality here that would only happen at a level down to one year but the court did i think they were not happy with that result just creating more unequality maybe not based on gender but all these people who didn't qualify for decades under the tenure rule that applied to them and have been shipped off now someone's in your current situation is getting a well the benefit of this five year rule just by the chance that he is now in these proceedings after moralities does so i don't think that's why i think everyone who's in that boat would have the opportunity to apply to see the same benefit that my client has at their similarly situated but listen rahsaan tama was addressing decades of gender discrimination you can't divorce the remedy from the merits decision in marriage in this case they found that congress had willfully constructed should divorce the remedy because i think you have gender discrimination in addition to that you have racial discrimination as a district court found then you talk about the supreme court too much but if you look at what judge ezra found the lower level of the physical presence requirements were designed to make sure that u s citizens were not go abroad and marry someone of that we did not find racially desirable and bring them back as citizens so you had gender discrimination coupled with racial discrimination were right this is a question of both in this case and speaker case would the supreme court even have authority to allowed to order your client to be a citizen well they would order him to be a citizen they would i think the way that that works as they read structure the statute which allows them to be a that is the law at the time of birth but you would change the substantive requirements for that in order to comply with the morals and thomas funny that the statues by the equal protection the mandate for an equal protection violation is equality i claim to receive none problems as well the five year rule is a reasonable place for the supreme court this court to land upon because that's what congress did in one thousand eighty six you know justice ginsburg when she says the now five year rule did not make it up wasn't the three year rule the seven rule was a five year old you agree there's been no request for supplemental briefing on the remedy issues or that's correct i'm not aware of anything going on the second circuit but going back to this crack in the remedy the eros on time they said we should measure the commitment to the main rule the main rule at issue in that case was the ten year old and then when you look at it now it's the five year rule so if the measuring point of where we stand as far as that here for five years including two years after fourteen and i think that would make more sense just to teach structurally with the court's decision even if the court however doesn't believe that my client should receive the benefit of the five into your rule it still has to grapple with the supreme court's guiding principle that the laws must be applied in a manner which is free from gender discrimination deporting my client is not an application a law free from gender discrimination so if you cannot give him citizenship but ask the court to remain the case to the board with instructions to bake a his deportation order at least until congress can act as they're under orders to do to create to correct the equal protection by the action that they created i think that would at least apply the status quo to this case without causing more injury to my client was you you correctly pointed out judge has suffered quite a bit to just bad luck i sense from the government that they may actually be an interim period where they are trying to remove people there waiting for congress to maybe address this issue did you hear that stated well my impression is that there's going to be very little stays being provided now that the priority guidelines have changed with the new administration but i haven't heard from them about this specific case at all about that i mean i mean we've talked about other but i haven't heard from their clients about ice how they would handle it my guess is it be a case by case analysis we have to go and ask them to do so generally speaking that they probably want to order deportation first which would put my client in a more precarious manner spot those convictions are invalid because of the unconstitutional statute i think there's a similarity that this court can make between deportation under unconstitutional statutes and convictions deportation in many cases moving on your honor it's to whether this prison of a felony is a crime involving moral turpitude it's very important that the court keep in mind the minimum conduct analysis that this court applies because a lot of the cases that have addressed this issue including the case relied upon just the statute but under this minimum reading of the statute i don't think you're going to find a vicious or corrupt state of mind requirement you're not going to find that has to be had the element of fraud committed as president of felony and you're not going to see that the deceit that patel talks about is in relation to any government official you have to act to see fully yes but it doesn't need to be in the obstruction of justice and that is positive in our favor i think what says it has to be deception it directed at a deception has to be directed to the government it's kind of a this kind of a jumble all these cases the talk about deception the first alarm or throwing in together fraud and deceit and this of course decision to tell makes clear they are not the same thing but then you look at the cases they just have the seat as the what's the diff the difference is fraud is trying to take property from someone yes yes no fraud to tell says is a material misrepresentation that causes someone asked after their detriment to see on the other hand is giving someone the bolts on a fault impression so there's no there with the see you can i give you a false impression but as long as you don't act to your detriment upon it that's that's that would be to see fraud actually has idea you've actually harm someone felony for benign purposes and secondly the concealment doesn't need to be given to any government official it can be given to friends and family because you don't want people to know your brother was a felon and that's in this prison of a felony under the minimum conduct approach when the best example i think we have is in our brief where we talk about a person who was deported and came back again illegally it's a felony under eighteen u s c thirteen twenty six supposes my brother and i know that how that works out i think the best case for that is the mercado case which we cited in our brief judge was in county just began by saying we don't even have flexibility here put twenty s with patel and then six of our colleagues into unpublished decisions you've got a lot of this circuit direction that mr prison is vile right so you you have a lot of flexibility because nobody's courts none of those prior decisions applied any minimum conduct analysis and there's no presidential authority on this issue whatsoever a lot of this comes from the small you versus ashcroft case is what the court i think most the case that you look for the that stems from this from small smally did not address whether this statute was a crime involv merits but there to sit there their standard is wrong the minimal conduct that this court applies says look at the least write up a will conduct that's from the supreme court that's from so so it's not even just a split what court would you say got it right and we should foll but you just said they got the stand they have the standard wrong but they have a more broad standard the their standards even more so what court had had as it right in entirety anyone yet while you're going to that nine yet judge so what about judge cal s approach the second circuit yes that's not a bad approach if the court be mandated to ask the board to give some type of clarification that's not an unreasonable thing for the court but the board can't make this uniform right they can't now we now that you've got the there this issue of deceit however i think is the is the main is the main problem and i think there are some cases that we sign our brains that show that deceitful conduct is not always per se a crime involving multitude maybe the best example though is  this false statement to a federal officer under one thousand and one which the government concedes is not a crime involving more targeted if i heard them correctly i read that i hadn't researched i was just wondering what other case called u s b hirshman the ninth circuit that finds that as well there are some so when it said it was an obstruction of justice a aggravated felony so the miss present a felony there's no vicious or evil corrupt state of mind there's no fraud involved in it and the deceitful conduct that  being alleged does not need to be in the service of obstruction of justice when you don't have any of those we don't necessarily need to have those you do not have a crime about the multitude this is the hypothetical world which is again counterfactual if if you're telling me the most prisoners to hide a felony drug offense but that is and that's where we are that's right that the actual facts of what happened and are neither here nor there but your brief is offering a lot of hypotheticals what we're trying to show you this is the smaller case was talking also about illegally gotten drug money that was laundered and that was with a point of emphasis in that case but i don't think small it in the minimum conduct analysis either which i think i court whether the government is receiving from these very small category of people whether you're receiving requests for abeyance and do you happen to know whether that's happening the immigration and customs enforcement has told me that they have not receiv requests for deferred action or something along those lines at this point that they're not aware of any at this point with respect to applications forces and shipping things like that there have been a couple of requests that have come in either to state department or d h s for some document associated with this case most of those are falling within the five year actually all of those of fallen within the five year category and those have been granted let me make two points very quick points about the on the crime in point to clarify something that that just came up first of all it was repeated several times that there's no requirement to conceal from the government officer i must be reading a different statute set you this statute says conceals and does not make known as soon as possible to some judge or other person in civil or military authority it's not just anybody it's those people judges civil military authorities so that's the first point the second point is as this court pointed out that was the decision  was based on his circuit law and decision and patel obvious that was based on physical law for example in the the tele case montgomery is cited in montgomery first so that point you made up just because you're right it i've always thought that concealed without making known to a judge was itself sort of odd one but i don't think our pattern instructions do tie the act of concealment to a law enforcement authority but that the statute reads the way it does and that's what this court said patel  in this court repeatedly in several different instances has referred to the necessary conduct for a crime that's exactly the same thing we're talking about the minimum conduct the necessary conduct it's all the same so that that's not worth even thinking about now i need to talk a little bit about this this interim rule and how that comes about and what how you know that that's not where that that the that it really truly is perspective of her into berths  in that take place after the supreme court's decision first of all there wasn't any relief from her office in santa and the supreme court says the very opening of this decision that morale is in town to have been continuously in puerto rico for more than eighteen years and more petition for review the only circumstance where the court would not remain on a petition for review for the second circuit to reverse its its ruling was if it was affirming the second circuit so the supreme court could based on those facts if it was saying five t applies to everybody retrospectively the supreme court could have said we affirm the decision of the court of appeals albeit for different reasons but we have from the judge they could have said that they didn't so you know both of those points from that can't be said it would not do in several ways first it's easy he asked you to rewrite the statute the supreme court said we are not equipped to do that this court in syria and survived has not used those exact words we don't be ri different section of statute to unmarried fathers now right after that in the spring course decision tenet it gave you an example of why that doesn't work and the reason it doesn't work is that leaves married parents discriminated against the children the buried parents would be dis favored by that scheme and the supreme court said congress could never have the term could never have intended that and therefore that's one of the significant reasons that they chose the ten year remedy as opposed to the one y ready at the time very clear don't mess with the statutory framework and specifically don't divide up unmarried fathers for married parents you can't do it the supreme court couldn't do the court was nearly unanimous with their concurrence and if so did they focus on the remedy you sure yes the dissenting portion of it by just sleep on justice thomas focused focus on the remedy portion along the same lines that it was kind of referenced and so it is now by this court that is if you can't provide a remedy do even get to the equal protection issue and that's what the dissent focused on in that case but the other thing you can tell from the dissent is there is no relief for mr mallison tanna zero nine it can't happen otherwise there might be a case here so you can tell from the dissent that the majority knew that there was no really fell through recent melicent down despite the fact that he would meet a five to rule now let me talk a little bit about reliance here because this is where least from my standpoint just in the last few minutes one would think maybe this recourse remaining because even if you can't become a citizen they're going to be ways to change your status it's very awkward no relief so and this in this gentleman he can't because the miss prison on top of the the one twenty two g right that's correct that's it and that's actually before this court it wasn't before the court in some input screen what didn't really happen would be that out but and he's forfeited it by virtue of both those he becomes he again becomes a an l t r so that's that's the process that this case float it's it's a you're right it's very complicated and but it all ends up with a straight split in the circuits it all comes down to describe a moral turpitude question for him yes yes with the with the the reasoning of the ninth circuit is what you have to consider if you're going to the question of whether to for for them to the board on r answer to the supreme court's mandate that the laws and questions must be administered a manner free from gender discrimination their proposed remedy is for you to just leave it there and i think that that's not what you should do  rather i think they should provide some mode of equality because that's what the supreme court said he should do i don't think he should rely on them to do it on a case by case basis because i think in the prior to guidelines today they were to go full speed ahead on these deportation cases in my client will not only receive inequality and how the laws apply to him he will receive a deportation order which is exactly i think contrary to what the supreme court that when it said that so i think that there's a lot of that would be great if you go back and undo that conviction as a pragmatic matter price immigration i think is very unlikely to happen after twenty years and the fact that the party is not retroactive that then there's no real reason to have discrimination between married and unmarried people either we're talking about cases that just discriminate based on gender on race and on marital status so when the court looks at this arena of the law i mean the where no other area that has so much discrimination that is still in place so it really is not too much to ask given the history is struck a context of what happened to say give us a motive become a small amount of equality so that we can have some relief going forward thank you but i thought that was actually argued in both you respectful of each other very helpful to me and that concludes our cases for the day and we stand in rece