good morning your honour's and may please the court david andrew galen a pro bono counsel for the petitioner in this case mr mercado i'd like to reserve two minutes of my time this morning for a bottle of possible mr ricardo entered this country twenty five years ago as a very young child after fleeing a brutal civil war in all salvador he filed an asylum application at the age of fourteen and in response to the court's question raised earlier this week it is very likely that he was entitled to derivative asylum at that time through his mother what what reason if i was unable to determine what reason there was for the fifteen year or so delay in bringing this case to  hearing am i missing something in the record do we have any information about that you are you're not missing anything in the record the record is completely silent as to why there was such a significant delay between when the asylum application was filed and when mr makoto finally received an interview it would appear that the interview occurred only after there was some involvement with mr mercado in the criminal justice system but that's that that's pure speculation at this point that's really just based on the timing more than anything that the record is silent as to why that delay occurred if and i know this is a hypothetical but if your client had received derivative asylum while he was a minor and then he had committed the same crime that he committed what result for his grant of asylum you're out of that is a hypothetical because there are a number of things that could have happened since one thousand nine hundred five whether or into removal proceedings for having committed a particularly serious crime are you sure i mean what was that and the exact circumstances of the crime are completely clear criminal documents that it a particularly serious crime is like a reason why i j would not exercise it's just a question in cancelling removal a different category of the law your honor it's my understanding that the agency could have placed him in removal proceedings as an adjusted refugee the issue of whether or not his case criminal conviction in arizona would be a particularly serious crime would become relevant in whatever proceedings those were and as it was raised in the briefs here i would agree with you that i don't believe that the crime for assisting a criminal syndicate under arizona law would constitute an aggravated of it certainly is not under the categorical approach and i believe the women did documentation we have from the state court proceeding would not support a finding of a aggravated felony under the modified categorical approach as that taishan i automatically move well because it's not an aggravated felony crime of violence type of offense that i that's correct your honor and what we have on the record now is a finding at least in the alternative from the immigration judge that that was not disturbed by the b i a that this offense was for was a particularly serious crime which obviously has serious ramifications for any further proceedings that might occur in the agency so to the extent  the finding of a particular serious crime be reversed by this court because it is it's clear that the i j a did not file did not follow rather the attorney general's guidance set forth and then and in making an individualized determination as to each conviction and it's equally clear as we've been discussing that there is a potential problem with the threshold determination that this was an aggravated felony because a particularly serious crime by its very definition must be an aggravated felony under ajna so do we have any actual conviction documents in the record your honor we do have mr mercado's change of plea his transcript although i do not believe beyond that there's any sort of transcript of judgment or the minute entry from the state court that would have memorialized a final conviction i believe the transcript of the change of p proceeding was really provided in the immigrant in the immigration court to for purposes of establishing the factual basis of the plea which the immigration judge in turn used to make both credibility findings that we think were in error and to further can make the erroneous conclusion that the stake or conviction was for a particular serious crime in your eyes but that factual basis wasn't adopted by your client at the time i mean it wasn't something a statement he made in open court right it was something that his attorney put out and then the defendant athlete asked to it in order to go through with this change of plea that's that's correct your honor and it may be that there are additional documents that could be considered if the immigration judge or the b i a henri man were to consider this under the modified categorical approach to determine whether it was an aggravated felony but based on the text of the arizona criminal statute alone for assisting a criminal syndicate there are going to be significant difficulties in reaching the conclusion that this was an aggravated felony  because the offense does not necessarily have to involve drugs and because the statute under the arizona statute that is has a single undivided set of elements that cannot be parsed out under the under the d decision so well what we are left with is a agency record that is ambiguous as to what occurred not only in terms of the the let the fifteen year delay between the filing of the asylum application but what may very well be that there are documents in the agency record that will reveal that we simply don't have those we also don't have the original asylum application that was filed by mr mercado's mother and i believe one thousand nine hundred nine it wouldn't appear that he and his sisters were listed on that application given the there was no finding of derivative asylum there but there may be possible there are further documents in the agency record that would indicate that what we do have is the undisputed may have an impact on whether or not that derivative asylum is what was called for at that time let's see a b c the a b c class is a there was a class action lawsuit that was filed by a by salvadoran and i believe guatemala and refugees in the early one nine hundred ninety s that related to how ins at the time was mishandling allegedly certain asylum applications that were being filed at the time there was a settlement that was entered in that class action that entitled people who were a member of the class to a particular treatment by and s orry reexamination of certain asylum documents whether or not that settlement would have an effect on mr mercado's claim here is less than clear because we simply don't have all of the documents and in any event his treatment whether or not he's entitled to relief under the a b c settlement is something that should be considered by the agency in the for in the first instance which further counsels in favor of a remained on an open record to allow the agency to sort out these additional issues along with the issues that were raised in the briefing before you do you want to save a little rebuttal time i would like to do that you're on a very much when i hear from my government next morning you're on market o'donnell for the united states just as a matter of clarification i reference this matter is being lost the applications being lost when i was discussing this with my client and was informed only for myself at this point but it does seem to me that the delay whatever the reason were worked to the detriment of this afterthought absolutely and i wonder whether this is a case that think the government would consider placing it to mediation to try to sort out some of the things that are being discussed today outside the context of litigation well actually your honor that was what i was going to  propose based on the question asked which neither opposing counsel prior counsel any of the counsel to my office d h asked counsel no one picked up on and it's so compelling especially in light of the little bit of research i was able to do it appears that mr mcardle had done everything he could to be a member of the a b c class and a derivative on his mother's application the there the statu cited in your question there's raises issues as does a corresponding right regulation that requires her to have done something within two years of being granted asylum but whether that applies to b c cases we don't know so in the interests of justice i was going to propose either to allow the government to do a supplemental briefing on these issues or to remain and as i've requested on an open record but mean th also if we were to mediate one of the things you could do is agree to defer under president obama's new policy or actually decision as it was like the i j india a treated this is an entirely new application for asylum and it was obvious that his prior application it languished well and i think it's a terrier in the comments that he without the documents that we have now in the supreme court has held our relevant documents to making that determination i would like to point out and i know that at this point it's almost moot but the i j a decision that and which compels even more in the interest of justice that this would go back on if it goes back on an open record to allow all of that to come out because there's another issue in the record and that is i don't know if you have the record with you with page three eighty six is the i ninety four of his entry and it says in here that he was entered under a deferred and forced status which is something that came up only for a couple of years after the temporary protective status and did in the guatemalan and salvadoran cases for the civil war purposes so he was actually admitted without and without inspection so help me through this i don't know i mean to get to the bottom of this and perhaps he has already been admitted that we don't even know what's preferable mediation or with the board be open or i don't know what the preferable route is here to be honest i don't either ultimately d h s s is going to have to take this back to the fundament and go for a start over basically answer all of these questions and you know we've got the legislation you talked about and the the reg the regulations how do they impact this do they impact it is there something else a criminal history which was minor up until that last event tonight which i think as counsel put forward so well that you know there's a lot to be explored as to whether  that qualifies as a removeable offense on the state level so if it goes to mediation would your office take care of the proceedings that's we would work try and shepherd it through i just don't know that that's the most now we're going to be and also since then they've changed they're not even within the same departments yeah and yeah you know and so you see you know all the and has in a sense expired pretty much them there are a lot of people without the first council wasn't familiar with it but he in his own words i don't think you can avoid the fact that he's screaming out i'm going to rivet i would like to just say again speaking only for myself but i really appreciate your candor and your willingness to work we saw this case in an appropriate manner it's very helpful if it's my job your and my ethical obligation but i also think there's something more to be on this side of the case than winning i appreciate that thank you mr guyana and while i'm b appreciating i want to thank you for taking on this case pro bono because in this and many other cases it's extremely helpful to the court as well as to the clients to have that representation and we're grateful  my limited experience with three mand and i'm sorry with mediation in these immigration cases and hasn't been my direct involvement or other system colleagues who've taken other pro bono cases in mediation has been one of significant frustration with the agency identified namely i think it was the analogy is herding cats and it seems particularly apt here given all of the the pieces that are going to be moving and it may be best for my point of view to send this case directly back to the agency to let that be sorted out by the fact finder in the first instance but that being said i'm certainly not opposed to mediation as a first of all they're not mutually exclusive i think because scuse me if the mediation piece seems on satisfactory the parties can agree to remain and it as that's what they come up with a can either come up with a substantive solution or they can come up with a solution that this needs to go back for a fact finding and i agree your honor and i think that if that's what the court sees fit there were more than happy to cooperate in every way with the government to come to a resolution of this case that recognizes the significant delay that has occurred and to try to come to an agreement as to how to proceed with mr mccullough's up location i think it would be best given actually given the fact that i j s are within department of justice and you're going to have to deal with d h s s and part of this is well and i think to the extent