unlawfully in the united states and as we know to be it's an element of the offense that the healing has to be legally or unlawfully in the united states before they can be convicted on this particular case was a what i would call border bus mr lopez drove into the port states is not defined by statute then the question is how do we define it and the debate in this case is whether you use is an immigration offense which i believe this is whether you turn to immigration law were not the government's position is that in just simply means in within the soil of the united states and at the port of entry is in the soil of the united states and i pointed out that the term in the united states for over one hundred years  interpreted to require not just in the united states within the soil but also in entry that is free of freedom from official restraint the zavala case which the government has cited for the proposition that in the united states just simply means the soil of the united states the government leaves out i think the critical part of that case it's an illegal entry case found in the case but that the well established proposition and this is a quote smuggling cases the government indicates well paid even within immigration related offense of offenses we don't look at it with an interest not required the government has left out the fact that up until a change in the law and it's a nice eighty six in entry was required congress deliberately changed the law to take away the entry by changing the statute from whoever brings into or transports a person who has entered the united states the law was to only culpable of the only smuggling or transporting aliens if the person has been brought to you it has come to the united states in point of trying to make is that congress understands the difference between the technical term of art in which an immigration context always requires presence plus freedom from a straight from coming to or introducing to or bringing to the united states and that's why a case like the karata case which is the  importation of marijuana that deals with contraband rather than an immigration status or of the defendant doesn't implicate the the term entry or in under an immigration cont second whether they're here illegally or unlawful over the statute isn't just directed that they will be part of the right but somebody who is or who has a gun who is an alien and so on and closely at the definition of the agency interpretation and twenty seven c f r the there is no definition of the term in it it deals with the status of the alien it looks at things like it did the person was who paroled and did he or she overstayed their initial viso or student visa that sort of thing but doesn't define the term it and secondly the only case that has really taken a close look at in my opinion it whether we should defer to the so regulation or interpretation of this particular part of the statute the already on a case from the fifth circuit which is a two thousand and five case rejected it and said we don't think that first of all in a criminal context we should defer or give much deference to an agency interpretation particular by agency that it's in forcing law but secondly the a t f is not in the business of regulating immigration they're not they don't have any expertise this isn't the type of situation like with the e p a or other types of regulatory fences where we really have to defer to the expertise or the agency with and find nuances of laws that ar twenty seven c f r statute it refers to immigration related concepts like parole overstaying entry that sort of thing but i don't believe so right my understanding is that  may have been a close call but ultimately laws that are difficult to interpret or and think it was have to be considered narrowly to the benefit of the defend it and i would just suggest in this case it's not like it's the government implies that he's seeking some sort of three passed he certainly was convicted of the crime that he did commit and there are a number of criminal codes that are statutes that he could have been prosecuted in this regard for example five forty five under title eighteen which is important which is  good morning your honors and carry on behalf united states from the southern district of california in response to the arguments that have been made by mr lopez for the government would note that at the time that he entered the united states soil he was in fact an illegal alien with no right to be in the united states unlike the cases that were cited throughout the appellant's brief your honour's mr lopez pereira had absolutely no status in the united states individuals from el salvador and other places where there was political strife in this particular case we have an individual who by his own admission had no legal entry into the united states and as has been pointed out by i believe it was justice fisher that title eighteen united states code section nine twenty two twenty eight several classes of people that aren't simply aren't allowed to have firearms and that congress  when he was still under restraint well there are two ways of looking at respectfully number one the evidence in this case didn't show that he was in the united states feel free from act did not show that he had not come to states free from restraint because of course at the time he was first encountered by any government officials he was already a primary inspection in other words it is not analogous to the typical official restraint issues where somebody that is that the term entry only is significant for purposes of immigration law because it is established the burden of proof as to how th admissibility in other words if someone is attempting entry in the united states the burden of proof is on the alien if somebody is already here then it's a deportable proceeding where the burden is on the however i think that in this particular case in the united states first of all mr locust pereira conceded that he was in the united states and because this is a title eighteen offense this court has rejected the notion that the concept of the fiscal restraint applies to title eighteen offenses for example the hernandez garcia case that the same idea was brought up i realize that's a title eighteen bringing in illegal  united states there's a whole jurisprudence around that terminology was troubling is that you know there's clear not only is there that history and jurisprudence rather congress actually amended one of the provisions as described to remove that ambiguity or that concern so i understand didn't do it with respect to the stature i understand why it may be troubling to this court but i would also suggest that this is not the case saying he was not free of he was free of official restraint until he got to the primer that's was the evidence before the trial or fast your honor well but at that point he was even thinking about if he was still trying to get it actually gone down to mexico to obtain some kind of papers that would allow him to continue to legitimately going to the united states he isn't challenging his conviction for making false claims he's not but i think that that conviction and that information can be used by this court to show that he is that again because he had absolutely no claim to citizenship and because that's the whole concept of unlawful restraint has come as a driving a van full of illegal mexicans who were not in the united states because they had been qualified to be in there but how does that help him because he was he was convicted of transporting illegal aliens that's absolutely true the reason it helps us your honor is because i can we have a situation where the concept of official restraint was being argued saying that oh you know because the police were following him he was under surveillance that meant he was not free from restraint the same thing here there's quite a little differences between them along the slowed freeway chase a guy standing there and secondary with surrounded by officers are about to tell him off to jail that i understand your honor but i think that the difference is that this circuit has refused to apply the issue of unlawful restraint outside of the thirteen twenty six contacts and i think that's important for states aliens who were unlawfully in the united states are not in valid immigrant nonimmigrant for pool status right it goes on to say the term includes any alien who unlawfully entered so you didn't quote that latter part that's part of a in your brief you just relied on the the lead in what is your argument then you keep saying he doesn't have any status well he had no valid immigration status right and then we say in the for immigration purposes because of official restraint doctrine he's not unless he's free of surveillance and all of that kind of stuff so and you've just sort of at the point of entry you can't he's not even if it's an immigration case he'd be attempting to get in so and then we look to the legislative history of the regulation if you will which is adopting the i concepts and then you say well because this is title eighteen we shouldn't transfer immigration concepts and that's the problem i think intuitively i understand your argument but i'm having trouble understanding why suddenly because particularly when the regulation itself is importing i and the concepts what we're supposed to do with that it seems to me  take the words in and enter is they're normally used in the immigration context and that requires being free of official restraints i'm sorry he was physically present on the united states as what a convicted felon or a mental defect and either one of those individuals could still be charged under title eighteen section one twenty two ask destruction is not whether he is free of official restraint the question is whether it's required for the purposes of this thing you seem not to be aware of or influenced by the reliance on the analysis of the statute so i agree with the court in that regard and i think i want to say that i think the court got it on the thirteen twenty four this elite smuggling case that the whole point is that in one thousand nine hundred six they took out the the brings in it's not that there  clearly have no right to come to this country in that in the thirteen twenty six context it's required that the either have entered or if they're found in official restraint they're charged with an attempt because they haven't completed the entry so if it applies in that context it clearly has to apply in this