good morning carol hartzler federal defenders for jose's a political toss the sole remaining question in this case is whether a person who has only one valid deportation and does not return to the united states within five years of that deportation can be convicted of a legal reentry because he was still required to obtain advanced consent to reapply for admission the answer is no according to this the plain language of the statute this court's case law and the agency's own policy that's no rational fact finder could have found this does have hit a guilty of a legal reentry and the district court erred in denying his motion for judgment of acquittal first of all the five year advance consent requirement from eight u s c eleven eighty two applies to the illegal reentry statute of thirteen twenty six and the easiest place that we can see that is in the plain language of thirteen twenty six where it says that a person it contains two exceptions and the second exception says that a person cannot be convicted if he was not required to obtain advance consent under this chapter now both eleven eighty two and thirteen twenty six are in chapter twelve therefore under the plain language of thirteen twenty six the five year time limit eleven need to apply and because  is outside of that time limit then the questions over he doesn't he's not criminally liable for thirteen twenty six well as a matter of policy i mean there's a couple areas that i want to talk about but  but i'll come back to that after that's more sort of a government question but i want to ask you too but as a matter of policy wouldn't the rule you're advocating effectively transformed transform section thirteen twenty six collateral challenges into a direct appeal because it would require courts to apply intervening changes in the law to an immigration judges removal but to first of all i say i'm not sure i would say that it's a collateral attack because collateral attacks are actual say that he you know has a right to be here but as to this case double jeopardy would attach right that i believe that is correct i'm i'm not sure i'm following your question but i would say that the term collateral attack we would just suggest a benchmark talking about a conviction here right here talk we're not talking about just the dark deportation proceeding exactly and so if we buy your argument then i all jeopardy apply to his being charged under these facts i don't think double jeopardy applies because the if if the court agrees with us then he can't be jeopardy doesn't apply to civil proceedings so in other words if for instance the court finds that his underlying removal order is valid that would be a civil finding and it wouldn't a double jeopardy wouldn't attach in that sense if i'm following  and he's deported and then he comes back then oh yeah doesn't get a pass for ever no absolutely not the one aguilar rios isn't final yet that is true the the court has but also my client is scheduled to be released in december i don't think there's any way that any on bond proceedings could be resolved before my client would already be added to tension and so for the purposes of a sane you know you would like to get out of detention out of incarceration so we would urge the court not to wait for you or we us now your position is that the fourth fifth and most recently the six arkansas got the statutory interpretation question at issue here wrong how did three circuits just get everything so wrong and the supreme court doesn't seem to have a problem with each with finding that three circuits in the past have gotten something wrong and now you know we would also say that for instance when the ninth circuit says otherwise sometime then they they're willing to say something light i would agree with that your honor i would agree with that that your question judge callahan i think that the reason that these three circuits were wrong is because they fundamentally misunderstood what's at issue here that this is a two step process now the d c circuit got it right and we've also pointed out that the second circuit and the tenth circuit while not holding this in the context of a rule twenty nine also have found the same way as this court has that thirteen twenty six just  advance consensus and not actual permission not a visa or anything else that would allow a person to legally come back so going to the policy issues that i think you raise there is this concern well you know if the court rules in our favor is that it opened some sort of floodgates it's not first of all because anyone who has a valid aggravated felony is always going to be subject to advance consent second of all anyone who has to be valid orders of removal is going to be subject to twenty years  and moreover i think the fact that this is a pretty rare circumstance is evident by the fact that this court has never actually reached this case this issue this specific issue before so i don't think that we need to be worried about any kind of  situation here where suddenly we can't convict anyone under thirteen twenty six they find just on the government's argument though on some level well i think there's also a policy concern in decisions like united states be the tall mendosa and which i'm not really sure that i mean we're not free to disregard three judge panel but as as as i understand it everyone seeming to say that there is problems out there and that the ninth circuit is a pain consistent concern that would make the case moot that's correct and your honor i can certainly say and i'm sure that this court is aware that in other cases where we have argued that there is you know the court should wait because we've done a petition for rehearing that's pending i we have not seen the court wait in those cases for that for the outcome and so i'm it's not my understanding that that's a general practice of the court to necessarily wait in these kinds of situations and  here illegally my understanding would be well he presented the port of entry so if you can count that there would be two thousand and three and then two thousand and ten so they're in the record  this is because i believe there are there are several reinstatement but they do go back to the two thousand and move a which we are saying is invalid in and under arias or don't as therefore this can't be relied on just think that the language is very plain here and first of all the plain language of the statute says under this chapter both eleven eighty two and thirteen twenty six are into this chapter moreover if the court were to find that the five year limitation didn't apply it would render that exception meaningless which certainly is a special reconstruction issue moreover this court in pia jaimie others other decisions have has always linked the advance consent element to the special permission to reapply which is exactly what we're saying here is exactly what puts the five year limitation on also the form that we included as an appendix to a reply brief shows that even if a person wanted to apply for advance consent after the five year time of expired there's no way for him or her to do so there's no process or way that exists so everything in the record here just demonstrates that congress clearly intended to put that five year limit criminal liability under section thirteen twenty six this is the finding of both of the fourth fifth and the sixth circuit and it's the finding that we urge the court to adopt today nowhere in section thirteen twenty six is there any mention of any time when the only time it does mention a time limit is that if anybody who it enters attends to answer or said any time found in the united states prosecuted that's the only time of if there is no reference to inadmissibility there's no reference to eleven eighty two and there's i did find your argument that we're not bound by that could be persuaded you know that it's not like that you know there's a lot of things i don't like to do but but you know we do have to follow a three judge panel and l you know there and it isn't finally at that i didn't maybe you can better explain to me why you know i understand your argument to be that eg a lair really shouldn't have been decided that way because it didn't distinguish on our prior three judge panel but i don't know where that makes it not binding on me yes you're right and i understand i don't want to sound like sour grapes here when i obviously i disagree with it and we are in the process  pacifically that there is no time limit and thirteen twenty six when prosecutions can be brought the only time it has found in any time in the fourth fifth and sixth circuits have a clue clearly held that that's a clear statement that there is no restriction we read into the statute by another administrator's definition and eleven eighty two of what it grounds of remove ability is under let me now the the question then become appellant makes the argument that well if we don't have a time limit those two sessions mean absolutely nothing there so therefore they must refer to eleven eighty two but that's not true i think that if we take a step back and we look at the entire immigration a starting back in the step back the immigration nationality i for these purposes you have to prove to people those that needed fans consent to come to the united states and those that don't the group that does not need to finance consent is for example the visa waiver countries a he has a two thousand and three expedited removal that's completely separate interesting from the one thousand nine hundred nine removal order that was based upon the aggravated felony that removal order there's no time limit as appellant argues there's no five y time limit in the statute that we have to bring a thirteen twenty six prosecution this is a found in case the statute says and even as previously reported that's found in the united states at any time subject to criminal liability but then it has those two narrow exceptions so in this case under the rule twenty nine motion what we're arguing is that he's got the valid removal order in two thousand and three yes but i move on there's no problem with that no no problems really low no problems raised here he's got about a revolver he is then at any time found in the united states under the statute he was guilty as charged and that rule twenty nine motion was properly tonight that's all this court needs to find to resolve this case need and i'm trying to lay that out by saying there's examples where this applies regardless of the timeframe for example in subsection to a prior to an application for mission which under the un is defined as japan who does not need to cancer consent the only but they've been deported for example somebody from britain overstayed their student was deported comes back and wants to come back they don't need a visa to come back to the united and if you look at the actual visa waiver statute it's specifically references that exact scenario and it says you know person with visa waiver you're in that country britain japan you do not normally needed vance consent examples by reading the statute the plain language is not implying anything under eleven eighty two shows that the statutory scheme doesn't make sense there are concrete examples and it's not necessary to meet a five or ten year time limit into these statutes in order to have them make sense and because the court should hesitate to read any such requirement or limitation of the statute unless absolutely necessary i think that i know which  follow the fourth fifth and sixth circus of all the unions have decided all three have decided this issue and it doctor the government's position that the statute the language of the statute says any time the fact that you know they're  referring to is the issue that there is no time limit on when the thirteen twenty six can be brought that you don't read into the statute of time and it take one from eleven eighty to as opponent would suggest a five and ten year time limit in read that into the statu many issues with it that are not to be sour grapes i think need to be addressed on far but we need not go there we need only decide this case on on the same rationale as the fourth fifth  is no time limit in thirteen twenty six those two exceptions to not require that a time limit be brought in every case and finally i just want to make one additional point that  of the reinstatement orders so on that point we would argue that the government governments are in this flight what i want to sort of lay out is the government takes this position here that this is not a set these are not two separate steps but this is just one step the problem with that argument is this every single time the government goes in to do a thirteen twenty six case a trial the government presents evidence usually an  e there is no evidence that the person submitted an eye to twelve there is no evidence that the person complied with the regulations in eight c f r two twelve point two that separates those t steps and so the government here is completely backtracking and doing exactly the opposite of what it does an every single thirteen twenty six trial and i'd like to read to the court from this decision and he now jaimie which says the ins and include the requirement that part of alien must have remained outside of the united states for a minimum of five consecutive years in other words this court has already held in penal jaimie as well as numerous other decisions that the advance consent requirement is specifically linked to the five years and the regulation at two twelve point two in other words what the government is having you try to do here is contrary to every single case where the government