please the court mr lim's immigration status is anything but uncertain as he sits here today he is a legal permanent resident he came to this country as no p r was ordered deported but when the board of immigration case the deportation order is vacated as if it never occurred the retroactive application is crucial because it restores previously illegal presence in the country as though it was legal that this was the solicitor general's position in the canon versus holder there is no circuit split on this issue there is no law to the contrary and that's because de just has not appealed these rulings everybody agrees that this is the effect  corner that reopens the case that it is vacated and it is retroactive and so the point here is that in order to give retroactive effect to mr limbaugh's l p r status this court does not have to strike out a new case l and it does not have to adopt bunia this is a subtle practice of immigration procedure the prosecution offers no authority that this court should ignore the retroactive application of the b i a ruling and restoring limbs  so there's no reason why we should treat it one way in the immigration context another way in a criminal context and so there's no compelling reason to not treat the restoration of limbs l p r status as retroactive for this criminal prosecution even the principal legal advisor at homeland security who examined this case agreed and found that to be on a ruling reopening his case restored l p r status it did so retroactive application of immigration law and its consequences in the context of a nine twenty two g five a prosecution and so what the court did in each of those cases is it examined the defendant's immigration status and what the consequences are j status with legal gave the defendant legal presence as far as nine twenty two g is concerned mr lim has l p r status that is a superior status to t p s and as the remaining cases discussed the fact that we had a pending application that did not alter the status and that even if that pending application was granted it would not make the previously illegal presence legal but that's not the case for m legal status was restored retroactively and that made his previously illegal presence legal i would also note that mr lim's case is extraordinary and it's rare it  common for the board of immigration appeals to reopen these proceedings as such a situation like the one in mr lim's case is going to be limited to applications for two twelve's the relief from immigration cases occurring between  hundred six in two thousand and one in the concerned deportable criminal offense so there's nothing about a ruling from this court that would open the floodgates to a lot of claims because this is a very rare procedural scenario so again we have a situation where you have no law and no sound policy rationale to treat the effect of the board of immigration appeals proceedings as retroactive for immigration cases but not retroactive for criminal cases and so with regard to the first issue on appeal this court should apply the set of immigration law just as it has in other cases give retroactive effect to the restoration of mr lim's l p r status and dismiss the indictment because mr lim is an l p r legally entitled to possess firearms and if you don't have any questions on that issue i would like to move to a search warrant for the issue of the search issue so with regard to the search we have no dispute that this was a custodial rest mr let me answer the door he complied with the officers request to step aside even though he was not dressed and then the agents handcuffed him behind his back they did not perform a search incident to there was no request to search there was no request to look take a look around there it was simply if you want to go put some clothes on we've got to come with you how many of the officers went in that  others of them it appears that the testimony is slightly inconsistent i believe there were six possibly seven and it was dark it was six am in the morning and that would have been in march so yes i'm i believe it still would have been dark outside at that time and if you look at the transcript of the evidence you're hearing there is no testimony about it consent to search all of the testimony is about a consent to enter and those are two very different things upon arrest no miranda warnings were given and for this case we don't need to look at why miranda warnings were given we do not need to consider the exceptions to the miranda rule because officer randall tells us why miranda warnings weren't giving and it's because he says i don't care about miranda my case is over and that's in the record of page seven sixty five so randall moves limb inside where the officers outnumber the family by about six to four there were four family members including mr lim we think it least six officers are there any guns in the house and also the record is clear that this question was posed to mr lambert and not mr lim's wife that's on the record page seven forty three and lynn provides the answer yes there's two guns in the home at about the same time that officer randall is questioning mr lim and then moving him into the bedroom where one of the guns this the rest of the officers begin to perform a protective suite and that protective sweep eventually progresses to a full blown search  the prosecution's reliance on the protective sweep is misplaced in this case for three reasons the first is the purpose of the protective sweep is to find persons not guns the second is at the mendez criteria for the sweep has no been met here there's no reasonable articulable suspicion that the home harbored a dangerous individual there's no testimony in the record about dangerous individuals being present in this home and finally there is no support in the record for a consent to sweep there's that there's a lot of discussion of the government's brief about it but again a careful review of this evidence you're hearing the furthest they can get for the confession week is  y here's a statement that officer jenkins they believe officer jenkins obtained consent but that follow up question was never asked who did he ask and what was their response so there's no support for this consent in the record so what we know is that we went from a protective suite to a search and the reason that we know that it progressed to sweep to a search is because the officers began looking in places that were too small to harbor a human and that's when in toto we've got a custodial rest followed by a failure to give miranda for an invalid reason we have unworn questions that elicit an incriminating response meanwhile the same time that's going on we have a protective sweep that advances to a search without a warrant or consent for either and the recovery of contraband as a result of that warrantless search and all of this is far beyond the scope of the limbs concerned that the officers c accompany him inside so he could put on clothing so i request here is that this court suppressed the statements that were made in response to the on rent ice question in this court surprise the guidelines that were with regard to the status issue the government strongly disagreed a disagrees with it put counsel's interpretation of the case the b'nei a ruling only applies in the immigration context it does not apply in nine twenty two g cases the b government argues is controlling here because and what those cases say is that we look at the defendant status at the time he committed the crime and mr lim status was that he was an illegal alien on the day he was caught  transformed until after he was caught with the weapons and after he was indicted when he filed for two twelve's he really and the and the court has gone on to say furthermore that if someone has an that he was on the lam for since one thousand nine hundred from his fifteen sixteen years and he didn't do that he only did that after the fact and so he didn't transform his status until after the fact so those cases control your honor and in terms of two twelve relief to say this when the sincere decision came out and the decisions that followed the immigration courts didn't go back and automatically cancel all of the removal orders for individuals that were eligible for to tell relief an individual that wants to twelve's you leave must file and i won nine one nine one form with us c i s to start the process and they have to show a variety of things to show that they're eligible and again that is an affirmative step that they have to take to get that relief and mr lim again only did that after he was caught in possession those weapons and after he was charged in the indictment now i see them go to questions on that topic so move what we have here is as this court as in the movie in the decision which is laid out the proper guidelines for protective sweep we have here they just had a legal right to be at the house they had a valid arrest warrant for mr lamb and the testimony of mr lynch children also in addition to that to see the testimony that was that came from the officers everyone agreed that mr lamb let them come in the house so that he could dress well that that's somewhat different than the protective sweep on their own they at when they went in and they started looking in the in the and in in the rooms adjoining the main room in order to see who else was in the house because people were coming into the room where they were and so didn't know who was there they were alerted that there were weapons in the house at the same time that so they wanted to do a protective sweep to make sure that there were no other harmful people that were going to do harm to them in the other rooms and so and also the suite was only a short check of the bedrooms for people and for the guns and that can be found on page seventy seven forty six seven eighty and seven eighty one of the record and there you do with the position of counsel opposite that there is a difference between of people when it comes to protecting sweep it's my understanding that that protective that they're looking for people that they need to look for people but i mean if these people are armed they have access to weapons and they have and that should be able to  secure those as well opposing counsel so there's no you there's no support in the record for consent to the sweep and you say one well in terms of consent first of all michelin agreed that there was consent in his factual basis and that we had the testimony of the two officers who testified at the suppression hearing that their partner special agent rejections asked for consent and they both said that they heard  ask for consent and um and so you what you have that that support for that but again he admitted it in his factual basis in this was a negotiated fast factual basis where he admitted that he consented to the search and furthermore in terms of the guns were not drawn and they were not threatened in any way and furthermore it's clear that mr lim nor any of his families ever objected to the search examined immigration law and procedure and particularly with regard to al rawi and his later application to become to obtain a green card because he married a us citizen and they looked at that they said but the point is even if is it's not going to change the fact that he was previously here illegally and that is what distinguishes the limb case is that the b s a proceedings re stored his status retroactive i would also point out counsel me to a comment that mr lim was on the lam for fifteen or twenty years and the record is very clear that mr lim did not know that he was subject to an order of deportation and i would point out to this court that mr lim was a recipient of one of those original and the older green cards that did not expire the did not need to be renewed every ten years and so that's why he wasn't aware that there was a problem and i would also point out that one thing that makes mr lim's case particularly distinguishable from the circuit's case or is the fact that mr lindh was not arrested while he was committing a crime with a firearm he was arrested on an immigration offense he was not in the process of committing a crime in the way that many of these other cases were with regard to the search the government states that the officers were within their rights to ask mr lim if there were weapons in the home there already for that assertion well it is true that mr elim agreed and gave consent for them to enter the home that was it there was no consent to search there was no consent question the government also claims that the as part of the search and tries to expand the search by explaining that it needed to search for guns because once it found out that there were guns and while it was doing to protect a sweep it needed to make sure that the people in the home didn't have access to firearms that is flatly contradicted by the record by the time these officers started the search all of the individuals were seated in the living room they were secured and if there was such a concern for safety why on earth would officer randall take mr lamb into the very room where he already knew that the gun was it doesn't add up based on that record it on  the comment about the admission in the factual basis is particularly concerning because that presents us with a situation where we have a prosecutor who is putting facts in a factual basis that are flatly contradicted by his officers testimony and a defense attorney and finally government counsel points out that nobody in the lim family home ever objected to a search being conducted well the reason they never objected is because nobody ever asked to conduct search and i would just quickly point out a couple of things in the record on the questions about consent to sweep are found on a seven fifty one and seventy seven that make it short make it clear that it was agent jenkins who asked but nobody heard it nobody knows who he asked nobody knows what the response was and then there is ample testimony record to also demonstrate that it was very serene in this house officer bought a testified at length that they had control of the situation that it that it's a seventy nine seventy eighty three it was not stressful at all and it's seven seventy nine hundred eighty he even goes into describing how he was just trying to make small talk with the kids who were getting ready for school as can this on about whether or not he was on the wrestling team and he was even paying attention to the investigation that was going on because everything was completely under control there were no threats so i would