erred in holding that mr loria who had cooperated with the government against defendants from three different organized crime mafia families was an applicant for admission when he returned to the united states in two thousand and seven after a hundred ninety six now under actual board president the determination here is a twofold process one of permanent resident returns united states first you have to make a determination whether he's an applicant  says committed and that's should be the determinative offense identified in section one one eighty two eighty two yes yes originally but it what it says but it's is really this is the ease of making a determine really the ease of making a determination with respect to whether the person is or is not an applicant for admission and you can rely upon the conviction records to show that but it involved in st cyr it's time got a different one referred to the aliens conviction while the statutory words in far less work committed an offense and it says the practical difference so far as retroactivity is concerned escapes from our speak to this even though it doesn't speak to it in a controlling way well in case there was no practical difference because both occurred and i think that's how that language should be or part difference here or for determination the the and the factual question should be resolved by the immigration judge in fact you don't have to necessarily reach the vitality issue at the present time if it's remanded for a full factual determination the record is re with state the record is replete with statements at one forty one sixty three two one sixty four and one eighty seven to the effect that his criminal conduct as he testified stopped in in one thousand nine hundred six moreover the governing laws nine hundred ninety six and they were satisfied with ninety six at a minimum i would suggest that the case be remanded for a factual determination as to when the criminal conduct ceased to be ceased to be committed and determination was a mistake and yes it was indeed a mistake and under settled principles but right probably because that's not the basis of its decision right but what i'm split i'm saying is what i'm saying is on the issue at the very least on the issue of on the issue of when committed that is something that is a factual determination very much like say the amount of loss in your honor was on the panel issue was remanded because the board in gauged in fact finding there similarly here it should be it should be remanded at the very least for a determination of when the if when the offense was committed moreover as that's what we find and ease of application for the agency looking at the data of conviction forget about the retroactivity analysis of the statute but for ease of application of this exact kind of problem that they would have to struggle well i think that  cases perhaps even most cases using an actual conviction benefits the alien rather than harms him because it doesn't allow him to fall into this category unless he actually been convicted of the fence we wouldn't have situations where you're charged but no conviction is happened or you're charged acquitted but there's a preponderance of the evidence that you did it or whatever and they'd argue that all that matters is that they show that the conviction gives gives the alien some certainty that only upon that can he can he face this consequence way to read it well because i mean not that judge reggie i tend to agree in part but what we have here is a situation where congress has chosen where congress has chosen the word committed and i think it's important here in in terms of the this issue wasn't presented it wasn't before the supreme court in vitalism but for example the language here is virtually identical to the so called stop time rule for eligibility for cancellation of removal where the the language in one twenty nine b d one says that when the alien has committed an actually it's even stronger when the alien has committed an offense returned to in section two twelve a that and strongly suggested in that opinion that it was going to adopt that it would adopt what the government is urging us to adopt well but i think i think that case has to be viewed as it certainly is more narrowly more narrowly construed in dealing specifically and in dealing specifically with it's been feeling specifically with two twelve c you agree that if i disagree with that if you if you if you should invite if you find since you're in control in your which i would  same problem for listed in terms of not really understanding the inspection process it's not something that has it's a misunderstanding about supreme court so they've got it wrong but it is the issue really wasn't presented  department before us in this appeal what office is the cooperating office it was eastern district in new york i mean usually the offices with significant cooperate try to intervene with immigration authorities in some way at the what's what's going on on that front that was a judge already some time ago in the cooperation a purge and part of the problem here was that the record below wasn't developed  for ideas for a variety of reasons i wasn't counsel malone to bring the full attendance and extent of his cooperation we only recently were able to get the we we were able to get the five k letter unsealed to demonstrate which is not really our concern for purposes of this appeal but i just wanted to know if it was background on this that i might be of some interest all right i know you want to reserve some time with your government i scuse me may please the court may name a song part for the attorney general of the question deny this petition for review because the agency probably found the solaria to be a non citizen seeking admission as a result of his two thousand and four conviction for racketeering that was based on six wearies the or evidence record to support that that six count continued through that period is supposed to mean your bird would have been only to prove it at the start of the period at the end if you take a look at the information that is in the record it's the very last the sixth record hearing act i understand that it's charged through that period but that doesn't that he didn't have to allocute to continuing through that period so what is there to support the conclusion that not only is it charged through the period but it actually there is and that is that it continued through then when mr loria did plead guilty to that to those charges and the facts as laid out there's no indication at least in their mistreated record here that there was he contested the allegations in any way shape or form there's no evidence he had he made has to organise that's true but he has always offered testimony to the fact that he sold his interests and in fact i think the twenty unsealed letter confirms this as well that he has indicated he sold his business interests in the the brokerage firms in september one thousand nine hundred six but there's that's a that's a continuing benefit reviewing assume that he didn't have conduct continuing into two thousand and eight but that rather we were dealing with this question of whether it's the gate of the fence with the gate of the conviction that's correct your honor and it is unfortunate that in the boards at question that the dates that the board cites is not necessarily correct however we believe under this that this court has recognized that if sending a case back wouldn't based on the record before the the court and the board if it is clear that it would be futile for a for lack of a better word to say to send the case back because the the record demonstrates what actually how the board would h don't believe at least in the record it's there's no question with respect to that your honor but it is also important to note that the to the extent that there may be any challenges to the sufficiency of the actual information contained in the information or  other related issues that may be raising out of the coming out of the criminal proceedings those are issues that are collateral to what the immigration court and the board of immigration was of appeals was charged with doing so if there is any incorrect information that starting was contained in the criminal documents that are in the record with respect to the immigration proceedings then he needs to like the first get that corrected probably before the criminal court and in other words  subsection eight two of the title and in turn eleven eighty to eighty two who refers to convictions of offenses so i think that's what the supreme court in breathless was addressing meaning command that would mean committed an offense that is a conviction is that what is that what you want us to substitute for identified in section eleven eighty two am mean it  necessarily the fact that there were convictions eleven eighty two particular with respect to crimes a model which is what mr laurean was charged with specifically require either that given that there is a conviction or that he admits to commit or having admits committed acts which constitute the essential element of so i think because of the interplay of the two provisions that's that's where the supreme court i think took a look at the at the language in the way that specifically subsection  section c section d that don't talk in terms of convictions but i don't think you doubt that controlled substance offense would be would qualify here i'm missing something no your honor all of those subsections listed at one doesn't refer to conviction is or has been in the list traffic or in any controlled substance that's correct your honor but this is part of the concern i believe was reflected his decision which is that you said apart from florida lists the reference to eleven eighty eight who has to mean conviction because eleven eighty eight to speaks to convictions but only eleven eighty a which is that immigration officers who are on the front lines making the initial decisions on this point would sort of i believe the court used the word pipe outer court which is to figure out perhaps but no to leaven that talk speaks to expecting immigration officers on the front lines to sort of engage in all of these different kinds of fact finding to figure out what had offense occurred what type of offense that was what the elements were what law was effect at the time all of that at that moment in order to determine whether certain proceedings must be instituted so the government's position is going to be that if someone were under indictment one of these identified offenses and whatever reason left the country came back that would be enough to trigger the admission language of the statute it would only be upon conviction that such a person would be subject to the admission exception here an indictment would be enough i think if this were particularly with respect to type of crime then certainly because we have to sort of i think believe respond in kind of petitions counts refer to how it's sort of a two step process when there has to be determination made as to whether this is an alien that is no longer who is inadmissible and to the offense is that what you're asking us to halt i think what the government is asking the court to hold is that i see that i'm about run out of time if i could answer i think what the government its is asking the court to hold is that in this case engaged in criminal conduct that post dated it there's no record activity question of the understand that that is because he continued to benefit from the crime after in connection with the money laundering status of his offense and the span of time during which is offense occurred to send it back and to engage in further fact finding is in a much narrower way of dealing with th that it would be a narrow way of dealing with the issue your honor the only point on that on that issue that we would point out is that there is no evidence throughout the course of the entirety of the proceedings where mr laurean has ever challenge to the date in question whether you only pleaded guilty to some of the predicates all that the judgment the doctrine of judgment in the right so the problem is you're arguing that the indictment says certain things but it's with respect to a matter that he  to admit in order to be found guilty and we don't know if he did or not we don't know feed minute that predicate at all we don't know feet knitted it through that time period you know i'm always a little surprised that the government which is you know the department of justice not just the immigration unit doesn't find this out before you you come and argue to us two thousand and eight is the controlling gate here but you've now he's not looked at the elocution right you know because that's one of the issues with the and that's why we're asking you doesn't this would this benefit from being sent back so that we can be sure of what he our q did to what the dates were all of that all of that information though likely not to disagree with whether the appropriate course of action here may or may not be remembered for further fact finding the only point the government would what it would make on that is  loria was represented throughout his proceedings both before the immigration judge as well as the board of immigration appeals and the board is or the immigration court are not to be looking into like behind a criminal typo or scripters error but that's what the record is before us and again the governments would point to the the documents of conviction that remain in the administrative records with respect to whether this court believes that it would be futile sent to send the case back but if it disagrees then obviously remember either operation in front of an immigration judge that's what you mean you know the government isn't precluded from getting clarification on these issues from the immigration judge i'd i don't know i don't think there would be any limitations whether it would be sent all the way down to the immigration judge or whether the board would at our stage right thank you when you know you know usually the lawyers that doesn't even the pleat pleaded to the predicate it might not prevent a substantive act prosecution but what do you think i think we may have a statute of limitations problem since is and then from virtually twenty years ago so i think that's kind of a moot point i would just point out that it page one sixty four of the administrative record mr loria testifies that the money laundering happened from one thousand nine hundred three to one nine hundred ninety six so there is a factual certainly it's march one two thousand and thirteen hearing it's actually on cross examination of the government thank you under these circumstances i would urge that the case be remanded all right thank you very much thank you to both sides we're going to take the