good morning your honor office the defendant if the defendant in a criminal case pled guilty in exchange or a prison sentence of five years but then at the time of sentencing receive twenty years without being provided an opportunity to withdraw his plea st such a sentence would not be upscaled on appeal why because a defendant must beyond notice of material consequences of their place such as their potential prison sentence this knowledge of the material consequence of the plate is required so that the police may be knowingly entered this is also the key to  kentucky and why a non citizen must be warned of potential immigration consequences so that they may making going plea to the government ok hold on hold on so i said we you know we will give you a before we get into that first off in your in your briefing you seem to indicate that church run doctrine doesn't have anything to do with this case because custom low predates the cases that are being relied upon that's rasiah consols moreau can you can you tell us how how would you reconcile that argument with the supreme court's statements in brand x which seems to pretty strongly indicate that look if you've got a if you've got a later discussion a court's prior judicial construction of a statute trumps an agency construction otherwise titled  judicial interpretations and post that run interpretations of the same stats for supervision by administrative agencies and therefore brand x does not support chevron difference here either  came prior to chevron are are amusing from that later development in the law mean lots of folks aren't fans of chevron deference i raise my hand it's one of them but it's the law are you say in starry decisis always trumps the directions we've got about that we got from the supreme court lo those many years ago in chevron where on yes your honor we are and we and the argument we made is that those three cases actually show that they stand for that proposition clint legionnaire and neal stand for the proposition that in these fre legally a cow versus ashcroft from the supreme court in two thousand and four where the d where the supreme court noted that the board of immigration appeals has no expertise in construing supremum court decisions the court case law than the supreme court does that's i don't think anybody's arguing that what i hear the government arguing we'll hear from them in a little bit i suppose is that what we're talking about here is the  interpretating the i n a and what the i any means and that's something they're supposed to have expertise in and that's something we're supposed to be paying attention to them when they render decisions about so  look we're the experts here and we're telling you that this can that this interpretation of the i and a that's being pressed on you by mr saying is not accurate  what is it then that makes well to put it bluntly why why is the cust elo decision rooted as it is in pre amendment i n more persuasive than what the be a itself is telling us the i and a means what argue for us why it's a more persuasive understanding of the statutory text what you're telling us according to excepted fundamental canons of statutory construction and this is also something that's been recognized recently in the cards ursus kaiser v involving chevron but there was no right that's how that's our difference and i understand you've got an argument about that but i don't i don't want to take up the whole time because a judge made judge sram probably have questions but i really am version with the che rad and that that's just that's been swept out of the law has the real decisional hinge point cust l a just no longer exists so you shouldn't pay attention to it why are the why are they wrong there's a rule of lenity piece in there that you could talk over there are you some other thing but why are they wrong when they say the fundamental underpinning of cust all oh there's been eliminated don't pay attention to it well your honor st of all as a matter of law although section three hundred and forty eight has undergone undergone since cust dello six amendments congress never none of those six amendments changed of the structure of section thing that you're saying hey it's a stain and it's still there what is it exactly in that that gives you the leg up you're looking for just the statue itself has continued to exist in in  assume for the sake of discussion that you win that we think uk policy correctly decided that you've got the better of it on that and that they don't get to reach back in time and jump in the way back machine and make it all different  rossi is correct and costello isn't contrary to raw c it's just earlier law that doesn't take account of what dion a as it stands today means how do you how do you address that not be he treats it as if the j the fact that j rad no longer exists answers the whole question there's actually two distinct questions one is the statute status neutral and two can the alien be considered  to have been an alien at the time of conviction by virtue of ab initio to naturalization those are two distinct legal questions right precinct legal rulings and but not salute the forest for the trees are really our primary argument here is that regardless of the statutory the court really here has has if the court continues to uphold its its reasoning from the sat out that would create a constitutional conflict with construction which will d what it cost to tional conflicts and that's really what this case is fundamentally about you know where you put your finger on it constitutional points tells us we should probably not be addressing the constitutional due process argument in the st instance right george thank you so like to go in a slightly different direction to begin with and talk about why and we were in this posture at all and i'm hoping you can shed some himself for inspection at l a x international airport and just there is what happens at that inspection that's well that's where he's put into exclusion proceedings correct and then and then that and that doesn't that doesn't go counsel i don't know what's going on here with the internet connection yet another challenge of this time be able to hear me now i got you perfectly fine  guess i'm going to defer to judge qur'an for the moment until i can try to fix the thank you i was ok i would suggest possibly if you can't get it fixed just calling in with the phone and what i've done in the past when i have frozen on the video if you call it you can you can come in video but then instead of opting for internet audio you can call in on your phone and that will give you a solid line at least of audio even when you freeze you can still we can still hear you that means we may not be hearing me right now i'm hearing you i'm trying to work on that momentarily thanks guys yeah and i don't o since since you do want to speak about dia vs kentucky and we didn't give you much time to talk about that i want to ask you more specifically  is is that is that really the case i mean isn't it even if even if we were to accept your argument that cussed elo survives and that  something like the rule of law that he needs to apply and therefore there's not there's not a effect of his de naturalization that springs back in matter of constitutional law do you understand what i'm trying to ask can the two of them be harvey's other words can it be the case that at one in the same time today versus kentucky is of course controlling law and that rossi and consoles maro are correct in the mind run of cases or is it just absolutely irreconcilable there is a way that in fact the way that the court can hold d that rossi and gonzalez morrow can be upheld in a certain window of time this is because of as i noted in my brief a deal not retroactive so that so it is very clear that chide a decision is very clear but the a is not retroactive addio does not apply to convictions muro would actually still remain good law for cases involving convictions from nine hundred and sixty six until two thousand and ten when the what for you would argue that for any case any case involving a post the conviction they are irreconcilable and that ravi and gonzalez morrow cannot apply to any case involving a arrives he's put into exclusion proceedings when then is his successful admission to the united states at the time your honor at the time that he applied supplemental reply brief he is still considered to be ok so it's it's your argument that his application for an adjustment of status to a lawful permanent found it admissible and ordered excluded because he was not in possession of a valid immigrant visa but the or the exclusion order was executed he applied for adjustment of status with the former ins and in a practice decision which remains the president decision has never been vacated and remains good law at this time the regional commissioner held that the exclusion order did not render her ineligible for adjustment although she was inadmissible for lack valid at the time of the exclusion she subsequently became eligible for the visa which was the basis for adjustment application and thoughts was no longer inadmissible  presented themselves for inspection at the airport they were both found inadmissible at that time they were both into exclusion proceedings and they were both ordered excluded and yet the regional director the regional commissioner in c h concluded that despite all these think none of those prevented her from being found to have been admitted for the purposes of eligibility for an adjustment under ironing section two hundred and forty five so paragraph so your argument then is is not that so your argument then is that is his st arrival in the united states constitutes the inspection and admission where is it that under some sort of distinction between as it sometimes been called procedural and substantive admissions he is deemed in it mid for the purpose of seeking this really so as the court residence and as we explained in our supplemental memorandum and as government counsel in fact agreed with us completely i think it's important petitioner and respondent in this case disagree about a lot of giving don't think in the statute right in it that's the gloss that he says have put on the language in that section so i i understand that point and if i'm following you you want us to admission you want the principle to apply here for the purposes of eleven when a thirteen met and i and they and i understand why i just want to make sure that i've got that is correct yes  admission but martinez is about twelve feet and and it's not the only case that we have that's about to twelve h and not never in case we don't look to that same standard so so i guess the st question  statements about the meaning of that language and other kids so to two parts of the question your honor even if the court is not convinced that that is what martinez stands for the court is not limited to the martinez decision for that legal conclusion the legal conclusion about the definition of admission as only requiring a procedurally regular admission as opposed to one which is in substantial compliance with the i and a is found in many the definition of admission as we explain at mission is perhaps the defining concept of the i and a as a whole and historically and you know i discuss the historic the history of the distinction between exclusion and deportation proceedings i was based on the concept of entry how the concept of entry was replaced by ira ira they fire i replace the entry concept with the mission as defined by a u s c eleven million eight ten finding that an applicant for admission without entry documents is waved in by customs and border protection at the mexican border was quote inspected in admitted and this is as defined requirements and the fact that the that the board reached that conclusion and our exam is even more significant given the fact that our d n a is free iraq so in other words this admission has actually been defined and understood the same way under the i and i for decades include free iraq iraq and post iraq iraq that mission has been understood this way and that is prof and i appreciate that that summary and i i i don't disagree with your characterization of some of those decisions but the two thoughts that you know i'd welcome you address and i want to be mindful that we're we're well over time here need to make one of which seems to be seems to be in contravention of how it is that we will be in meeting but the st of which would say that for all matters we're now going to that would be necessary to get to this admission definition that your this case rests upon the task of judicial interpretation those are the your honor has correctly identified the precise point that which the judicial interpretation is needed and yes we do we do advocate for the court to take those decisions and i believe those are the correct decisions not only for this case but that those if the court takes those decisions and makes those interpretations which as your honor has pointed out this court has not explicitly made those interpretations in prior decisions but i would advocate for the court to take that task of your to show interpretation it will foster uniformity and coherent be ready to embrace it when it comes to saying things like well it's there's an ambiguity in the statute so you really should pay attention to that say there's an ambiguity and then when it comes to saying things like well you know even if we didn't have this to read issue we would interpret this in a way that gave the benefit the latest ruling on that issue you want to brush that aside  gusto was working on the statutory interpretation canons that existed at the time it was decided so it sounds that you didn't big us and then it applied to statutes of can two canons a statutory interpretation at st wanted to read the statute as a whole and make it this person would be at a disadvantage if we consider him an alien at the time of the sentencing because he couldn't have requested that you just really go against deportation and then apply fine the rule of law to be said we're not going to make that happen and apply that that said despite the impact of the g read decision that's a quote despite that blake set that aside that's how i read those words despite that and it says it should still be thought that the if the matter was still some doubt we would nonetheless be constrained bike step except the principles of statutory construction to resolve the doubt favor the petitioner so are you saying that the that i guess i have i'm struggling a little bit because you really want to dismiss custom that was just a function of korea or a case of statutory jay read existence just kick it to kick it to the curb when it comes to this rule be but it looks to me like the rule of law duty was a very important part of the supreme court's decision wasn't it no i wouldn't say that it was not important part because of that language thing despite the j rad so to be fair low did want to look at what was putting this person a disadvantageous position and think they didn't like the relation back idea and we saw it as as that being connected to the judicial th implications when we don't have to but given custom low statements about the rule of levity and given the argument that's been made by mr singh's counsel about the the audit the the strangeness of saying to somebody look you're a citizen at the time you played guilty so there's no pity of problem here because only non citizens only aliens have to be warned about immigration consequences when they're pleading guilty and you are a citizen and so as a th amendment and due process matter you didn't have to be warned about that because you are citizens and then the next breath saying guess what you're not really a citizen then because you came in unlawfully in fraudulent li and therefore we've denaturalized you and your of deportation we kicking you to the curb how how in light of the rule of lenity overhang from costello can both those things be happening at the same time as gordon well i think  he's a liar and no good liar and and there are consequences to be a no good liar i got that i know your argument i'm trying to get you to answer in the light of this rule of lenity statement from cussed out though how can the government make the argument that the dia has and there's just no equitable force no logical force in the length of the world to the assertion that it's odd for the government to say you didn't resort and i think that's i think this is where the timing of these cases matters relooking at the case from one thousand nine hundred and sixty four that is a different statutory scheme and did involve a different way of interpreting statutes had chevron been decided before custom cristela court would have had to say ok this is in big us and then it would have had to look at the if the board's interpretation was reasonable but we didn't have that then so it apply the rule of law to the because that's what existed at the time but since then the statute has changed and the board has interpreted and ailing a person who is an alien and has been convicted of an aggravated felony as removeable and that is based on saying well it's in vegas we don't know if he has to be an alien at the time removal or at the time of conviction and when you look at the ambiguity in that under a chevron analysis it would say it while there is the ambiguity if it's reasonable interpretation of that statu step two you should defer to the interpretation that the be in a so if i've understood you correctly and i look at rossi and gonzalez merlin i see they don't wrestle with the text of the statute at all how can we say ok let's defer to that why why should we be deferring to if he dixit declarations of the b i instead of engaging in textual analysis removal mean remove all proceedings at the time of conviction but it's not ambiguous with return in respect of saying anytime after admission it's that that plain language says any time after admission anytime a person who is an alien after supreme court rejected in costello supreme court in custody said that both the word is and the phrase any time after entry did not resolve the ambiguity it said that that neither of those made any clarity on whether the person needed to be an alien at the time of that met at removal proceedings or at the time of conviction so it's a dirty that's all i hear you i hear you acknowledging that the supreme court said this is ambiguous in both those factions both the present tense verb to be and b at any time after admission on both those courses supreme court said ambiguity right so why why i guess i'm to struggle with why you go with a modern statutory scheme the courts can just look at just the average if only for vision quest album instructive i can lob is instructive they were both two different statutes they both considered a person who was an alien at the time of removal proceedings but was a citizen at the of conviction in one case the person was on a movable in another he wasn't and the board in matter of rossi looked at both of those cases it didn't have a rule of chevron and it said well we see the ambiguity and our case is more like i can not like now we're in a new statutory scheme almost sixty years later and we can look at is it ambiguous to say an alien a person who is an alien and convicted of an aggravated felony at any time after admission is removable and the whether that person is an alien at the time of removal proceedings or at the time of conviction is what isn't clear and that's where we are they used these cases as a way to come to that it happened before chevron they didn't have that minute i can allow use the past tense of verb has been and it was it seemed to be on that basis that the supreme court in sixty in custody says that's the difference right that's that's a difference that's a that's not just a oh a curiosity it's a difference with that makes a real distinction that makes a real difference in this understanding of the statute now they in that precept run world they use the word ambiguous you know i think people walk carefully around that word nowadays recognising the impact it can  have but is there really anything ambiguous about the statement that if you are the way the language of the statute is she can put my finger  aggravated felony is convicted that has been not not the church alien now because we do natural allies too and it's one point you were but an alien who is convicted why isn't that i can love because yes i've had i can love how that has been convicted but as is so noted and i and we think this is the right like to raise always it could be the alien is convicted because it's an alien now and he is convicted there 's a conviction the sitting on his record or an alien who is convicted because at the time he was an alien but that's where it's not clear and when we will access that's what i can lab was that's that's what i'm wondering about because i can  this to has been that's the way you get to where you are which is it happens sometimes your nail ianal but it's sometime in the past you were convicted this use of the present tense seems to mean no we're talking about being an alien conviction happens that is that that is the distinction that the supreme court points to that has been versus is if you accept that that's a distinction that's meaningful doesn't that mean that the present tense isn't the ambiguous it's telling you you had to have been an alien when convicted respectfully i don't i don't think so your honor because the because when you then look at the informative if you look at the language of costello which i do think is instructive there is that an alien who that the person is an alien at the time of conviction versus an alien right now and of course in point that i think also stated was that if if a person is able to use a fraudulent way of teams naturalization to shield provision and expanded upon it to cover a large group of aliens who they felt as i think says undesirable in the united states for committing these egregious crimes and to use a fraudulent way of change naturalization as a shield sets up this absurd result that says well let's incentivize people to for optionally naturalized commit crimes and then they get to stay in the united states there's no consequence there's no immigration consequence for basically double violating the law you violate immigration laws by mis leading immigration officers and then you violate criminal laws by committing crimes and so that's where i can have one kind of cause so they might conflict in terms of using the has been or is convicted but because it's not clear that they had to be an conviction is is limited to aliens it's and and once again he was not an alien when convicted so it's not me conviction is the fine turd doesn't need just conviction that used in ordinary engage with the ambiguity in the statute and incorrectly stated that the because solo decision did not include the j rad in all of it but because so decision continue to apply the j rad as the reason why it shouldn't relate back because it would put in a disadvantaged position by relating back so how it doesn't we really does not help the situation because it didn't really engage with the statute it just called castello binding and it wasn't even considering the same statutory scheme so the apollo i believe that's not does not work in this case that doesn't it's not completely correct and it's not completely it's not complete it didn't address the the ambiguity issue want to come to a p d f since you mention that your honor and that again we see that that's that's a remedy in the criminal context that the individual has a six the memmott right to effect to effect of assistance of counsel and criminal proceedings and that's based on a reasonable is the department of justice really taking the position that produces just a criminal case it has nothing to speak to or it's got no impact at all on on how removal decisions should be viewed on and kicked out of the country for this it's that big deal so i'm not sure i understand where you're going if what you're trying to tell us is pain and you know nothing to see here don't look over there that doesn't make a lot of sense to me is that what you're saying we're saying that the could be a decision yes it's referred to immigration consequences but it's not the government who is stopping mr thing from receiving those immigration warning it was the choices that he made and his criminal defense attorney could not know to give him warnings unless he revealed to her what he had done that he was actually progeny and actually and or that he concealed that so she acts and has his avenue of relief on that  is to go through the criminal courts and prevent new as your day that he your line of reasoning has to be if you're a liar everything that happens to you because you're a liar is your fault and you shouldn't know that some day you would be caught and then you'd be denaturalized and then that the naturalized you naturalization would spring backwards and you could be thrown out but it's your own fault and so you didn't deserve any down to it's all on you you know could do you has nothing to say about this because you didn't deserve a warning because you lied respect i wouldn't want to put in those terms but i do think there are some responsibility on the sourcing and what i thought you know i know you were different but i and i apologize i i want to make it clear we do see that could be a provides these warnings there was concern about non citizens who really don't know consequences and in a case where someone has would if you look at the fellow and you have the judicial recommendation in that case you have a statutory provision providing relief from removal for someone with a certain conviction here we don't have any statutory provision that provides that and so we're just looking at a different case law under a different era body of law and so we don't see the pythia as equivalent to a j around in that respect understood ok jenji do you have any questions  your supplemental briefing we were julie joined in his analysis of the in admissions question yes your honor we do largely agree and i and i wanted to say in response to one of your later questions about board which there are the board was looking specifically at the aggregate of phony provision and it was talking about whether an adjustment of status could be an admission and an important factor there non citizens and for the court and so although it is acknowledge of the plain language of the definition of admission did not require them to make the finding that it helped or the clarity so was using it for the purpose extended to adjustment of status for lawful permanent residency as a trigger event yes and i think we would ask that kind of similar to to petition or that if that is a reasonable way to courts have also recognize that and i know you know we all kind of recognize that the contradiction within if but since that was targeted to one particular statute we don't see it as hurting then the ability to say that an adjustment of status in the procedurally regular contact like martinez talked about is it is an admission when we say and i just know sas can be an admission for the purposes of inadmissibility remove ability and eligibility for  relief that it it's seems if we would agree that it would be reasonable for the courts the other kind of answered the both of those questions and say yes we can accept and we can apply this term admission in this way swept up on that because really my basic point to your honor is is that you ought to see if the court continues to pursue the statutory construction as as  d in south there's there will be a constitutional conflict between castello on the one hand and but the on the other because that there will be a constitutional  as your honor a judge jordan you stated constitutional avoidance is a real thing and there is old ways to avoid a constitutional conflict a constitutional conflict can be avoided by simply adopting the pla clear alien means not a citizen and government arguing that the term area actually includes it isn't what a definition of alien that includes citizens would alter the fundamental can't be what congress meant because that has the perverse result of rewarding fraudulent admissions people who lied to get in are better off than people who don't lie to get in and that that can't be right it can't be the case that this was meant to be a reward for people who enter fraudulent plea what's your answer that  argument in regards to creating an incentive to commit fraud that is a policy argument that is not a question of statutory interpretation and the question well it is it is in this respect right we're trying to figure out what th statute means and there at her assertion is it can't mean that because that would be absurd congress doesn't mean to reward people who lied to get across the border and come into this country they you know that's not that's not something we should attribute to the congressional mind and your honor i bring up i bring up because a similar concern was raised by the rd circuit in honey and it was involving a similar question slightly convicted of an aggravated felony and that's where the whole distinction between at mit it as being a admitted meaning procedurally regular not substantially compliance versus lawfully admitted which is  in substantial compliance with the i and a and the court held in honey that the admission by fraud was not lawfully admitted and since it was not lawfully admitted anees even results how could congress intend to reward or incentivize fraud because that's what the nice did were cured his admission by fraud and the court struggled with this directly and the court said it even that's a policy decision which is not for this court to make the court must look at the language of the statute and unless congress has explicitly intended a different interpretation it's not a policy just the court is not permitted to make that a policy decision that all the decisions last congress ok well we got your argument and we we went good along on this we appreciate everybody's extra time and indulgence as we wrestle with a technical issue or two and as we had extra questions for as well argued on both sides appreciate councils time we've got the matter under advice that we'll get back