however it appears that his mother became eligible to naturalize significantly before his eighteenth birthday and she's informed that she recalls that she petitioned long before his eighteenth birthday and that's the reason that the documents that the government has yet to produce under foil haven't had an opportunity to review the full record because i'm still waiting for it from the government that is something that i would be happy to supply to the court the moment i receive the documents the request has been outstanding for several months i don't see why they won't be produced any time soon and the district court i the common requirements under summary judgment is the fifty six f requirement which is when the nonmoving party has not had an opportunity to review the full record of relevant materials the summary judgment determination is deferred until those materials can be reviewed property and i think there are clear holdings both by the bee ira and the equal protection holdings of this court that make clear that when an alien leaves the country and comes back with a voluntary manslaughter conviction that conviction is treated as a crime involving moral turpitude which it clearly is and this way the ball and so the question is whether equal protection requires that same outcome in a situation like this one where mr judah lang is in deportation proceedings and has not left the country since his conviction and this cour the alien excludable were he to leave the country and that's borne out i think by the development historically of the counterpart doctrine to twelve psionics faces the court is well aware applies only in exclusion proceedings to aliens who are coming to the border either for the first time or who have left the country and then returned after a brief stay abroad but since the one nine hundred sixty s the board has made it available in deportation proceedings as well for elliot's who are in the country but who left the country briefly and came back and then deportation proceedings the theory being that it is not fair to treat an alien worse than he would have been treated as he come back and then put an exclusion proceedings and when the board summarized that rule in matter of silva it used language that i think is quite a political to this particular case it said that it usually is the waiver is available in deportation proceedings if quote at the time of the alians last entry he was admissible because of the same facts which form the basis of his to court ability deportable would also make the alien excludable following a departure from the country and that's the rule that was applied in tapestry this court's decision which is one of the seminal decisions on the counterpart doctrine that was a firearms case and the analysis there depended on whether the reason that the alien was different deportable which the court called the ground of the portability would also be a reason for exclusion and it's clear from the usage in the opinion that when the court is talking about a ground it means the offense of conviction i refer the court to different from any of those crimes and actions that are grounds for exclusion i note that the very recent seventh circuit case that the government placed before the court last friday the case of bellaire articulates the rule in exactly that wait to the providing it to me this morning i understand she's also launched it with the court and that is that it's the decision in blake versus carbone which is the very case in which the b i first articulated this new theory a new approach to the counterpart doctrine aggravated felony conviction is eligible for two twelve's the waiver if his or her particular aggravated felony offense could form the basis of exclusion under section two twelve a as a crime involving moral turpitude and that is perfectly though there was a slight wrinkle which is that it was not clear what the consequences of the particular firearms conviction there would have been had the alien left the country alien tried to argue that it would be treated certainly will probably that i mean if i mean we are going to have to wait for those but and if we feel that we need additional things from counsel at that time we ask for that otherwise if we feel that we don't need termined that it was one so that is one issue that whatever happens in the december case is this particular case i would like to address the argument that the government makes about terminology because that is a an interpretation of the counterpart doctrine that i think is incorrect and it's inconsistent with the board's own practice as i understand it the government's argument is that the counterpart doctrine is never satisfied unless the provisions of the deportation statute and exclusion statute have substantially identical words in them now it's certainly true that the counterpart analysis starts with an analysis of the terminology of the statutes and sometimes that's enough to resolve the issue in the aliens favor and that's true on to determine that the conviction was not a crime involving moral turpitude and if terminology were the only thing at issue there would have been no need to carry on to that further determination and i think most importantly that is the analysis that the board has used in numerous crime of violence cases including manslaughter cases a prime example is a matter of race which is attached as tab one to the blue brief that's a manslaughter case from two thousand and three where the government made exactly the argument that it is making here today that there is no cases and even for them to be granted in some situations and i would note that the government has not identified a single case before two thousand and five going the other way not one so that gets rid i think of any argument for chevron deference here i think clearly what happened w the board took a complete change of course in how it interpreted the statutory counterpart doctrine it did not even address its prior decisions on this point didn't purport to give any reason for deviating from them and as this court has held in think what happens when we can't when we comes to citizenship that everything is just combined under this word called derivative actually there's two things it's derivative citizenship under fourteen thirty seven you see fourteen thirty seven the counterpart being three twenty one of the i nay and there's citizenship by acquisition that means citizenship at the time you are born and that's under three zero one now the addition of this case never never claimed that delong eighteenth birthday the fact of matter is she did not naturalized until he was nineteen years old so that is not an issue before this that first of all he's not he had not derived u s citizenship benefits and that is not an issue that he's actually peeled or that he's claimed was a badly done decision of the immigration judge or the board of immigration appeals what he is arguing is that he has acquired u s citizenship now as well mission is a little different in that case th to show that his father was a u s citizen and that his father lived in the united states ten years prior to his birth father which was after the father turned fourteen there is absolutely no evidence on the record that petition  any genuine issue whatsoever that would require this matter on the citizenship claim to be transferred to the district court there the court is not we're not your fishing expedition so he hasn't reviewed the file so he hasn't determine derivation or acquisition of citizenship in the matter should not be transferred to the just court well let me ask you this in terms of i you know i mentioned that we've got some cases pending in the circuit that we're going to have to wait for before a resolution  it have an answer really think of when you actually they never argue that in and so i do think that's a big wave that that argument that was not an argument that they made before the board nor an argument that they made before this court so i do think unlike what mr gentleman's counsel said i don't think that the crime of involuntary manslaughter for which mr long was convicted in this case is necessarily the manslaughter conviction as a an aggravated felony and it did decline to reach any further issues and under ventura and under this court's decision in n d it's clear that if the board's decision was wrong on its own reasoning there has your and there is no alternate ground to ferment in this type of situation and i don't think that the government disputes that basic principle of law so if there is some question as to remove ability on the basis of crimes involving moral turpitude that is something for the board or the immigration judge to address in the first instance on remand the point about congressional intent quite honestly i find somewhat confusing and the second circuit itself in the decision that was issued on friday in the blake case  this claim for what it is there is no congressional intent that is relevant to this particular area because as the court well knows the a plank ability of two twelve c and deportation proceedings was a constitutional expansion based on equal protection principles congress had the congress wished to repeal to twelve c for all crime of violence cases it could have done so that certainly shows that at least as of the time of that case the government itself believed the two twelve c was available to at least some crime of violence appreciation is those lawyers that are willing to give us pro bono service about that an excellent job an argument today and we're very appreciative of lawyers to us stepping up to the plate and taking over these difficult cases both of your argument was very helpful to the