extremely relevant to this case before you today the first one really relates specifically to the decision of the district court to grant summary judgment in this case and whether there were material facts in that were not amenable to a motion for summary judgment that in order for summary judgment to be granted there has to be a material showing that there were no genuine issues of fact and that the moving parties intitle you respond to the motors or rejected your honor we did not respond as i was going to tell the court we were in within a ninety day or a little less window where petitioner had filed a motion for summary judgment the government responded weeks later we responded to their response to the court not our motion and the government moved for motion very shortly and then the case was oral argument it was our position we were intending to respond to motion if i mean here's my concern with your suggestion that we ought to reverse remand because there material issues number one of course you didn't respond there we hype but more importantly to me even though the government seems to in their brief to suggest that they for purposes of this appeal only they're willing to concede that you your client was at one time issued a change of status it seems to me that there is absolutely nothing in the record and that's going to be my question that would support that an application was ever filed or that your client ever received a card legitimately in his own name as opposed to just simply a mistaken issuance so my question is whether we even need to get to monet or the other cases cited whether or not there's you would if we sent this back whether or not you have any evidence to present at the trial that your client actually an application and more importantly ever actually received whether properly or incorrectly or not a change of status in his name as opposed to the mistaken file case name you are that  point is very well taken you bring into the district court will allow us to develop the record mr korean did receive an actual resident alien card in his name that was issued by the immigration service in los angeles it was not a what bothers me though is that it's just not enough even even no matter how we interpret the money case right if your client never received a change of status rightfully or wrongfully then factual disputes you're not claiming there was assuming the facts are under spirited any kind of due process violation yes you know your honor i agree with you on your first point absolutely i believe that there are indeed facts  polite basically very matter i believe in the threat of intimidation and arrest removes the ability for the individual to be able to respond and in a forthright and calm manner anybody in the face of authority particularly again when you go into a government office when you're threatened with immediate arrest the fear that there may be you know a federal agent standing outside the door to immediately take you out of the country is a significant intimidation don't most anyone and i believe that that and they live in card for his status change of status i think you know not your honor your question is well put and certainly our knowledge however the difference with your supposition is if there's an element of fraud or misrepresentation a false record created in the database of the government's database and that's what fooled the replacement carcass only to issue a placement card there's no evidence that anything was ever i'd like you to be absolutely clear on this is the record at this stage after completion of discovery very clear that this card was simply issued to the wrong address see this person with the same name but who was not represented in the file to which the card responded when it was set and i think this is part of the record is that the conclusion that the government's reached after exploring all the databases and all is that there may have been another person with a similar name that was by somebody frogs and only and does it have an alien number or any other number that corresponds precisely to this wrong file the file that you do have for someone else who did file an application now you are believed completely new a number that was just  record is that we don't know yet whether that card issued in error or not the replacement card quote unquote was issued in response to this incorrect file we do know your honor that it was the replacement card was issued because on the basis of fraudulent database record it was created in the government database so we believe it was an employee that was involved in this if they have any evidence they want present that he's entitled to a car well i mean you've got to start the removal proceedings you go see the i j a you tell them your song and dance about how it was issued incorrectly and they tell you why it wasn't in the i j a the sides i mean i would the problem i have with the case is i don't understand by what authority after he's had the card for a period of time some person who works for ins can just confiscate the card well it happens all the time your honor whenever an alien is taken into custody believe the card is the property of the us well he can take it in his possession mustn't know we'll call it what's in his possession ok and you take his b take his belt you take a shoe laces you can take his wallet right those are just somebody walking on the street and i are nice and agent can come over to whatever i mean it's a card and it's his name on it you wish it to him and i just don't understand the authority by which it can be confiscated without hearing well i didn't research that issue of whether he has a property interest in the car detail if if the person has their status revoked the regulation has provisions for their required surrender of the card now one thing that i didn't see was there any regulation that requires if a card is stolen or issued incorrectly is there a regulation that requires self surrender i'm not aware of such a regulation far you should have given us a little bit better authority for i'm sure you're probably right that is specially if it's a current practice that agents take cards in particular circumstances like they find somebody illegally possessing at the border when they're trying to enter or they're arrested and they've got there it's not their cart or the agent can see that it's an improperly or a fraudulent card but jan given us that authority i assume that there is some such authority but if something may not be right and you've said you're not aware of the authority so that's what it's like not going to cannot point to a particular  see if there was some some fact that was going to arise out of this some allegations something to support his getting a card and nothing nothing came up and so after i took his deposition i explored all possibilities i never was states under color of law to simply remove that elian card without a hearing and place that elian in a position of having absolutely no documentation whatsoever restricts travel right to war and overall freedom of liberty and peace of