good morning and welcome to the ninth circuit a little housekeeping before we hear the two argued cases hadfield received berryhill submitted on the briefs run for over citibank submitted on the briefs gee all american shipping versus thank you your honor and good morning robert powell on behalf of the petitioner mr francisco vega in this case i would like to reserve three minutes by way of rebuttal ok in this case ice is attempting to deport mr vega for an offense that was committed over thirty years ago when he was fourteen years old he was arrested for possession of a controlled substance cocaine the that arrest resulted three years later when he was seventeen years old in a conviction that conviction has been expunged and it's the sole basis for the order of deportation that ice is seeking to reinstate trying to stop you right there forgive me for interrupting but right there my timeline is messed up because there's records are o p twenty five that says that he was convicted in ninety nine and it looks to me like that's a typo that repeat of an earlier typo from a r thirty the said he was convicted of eleven three fifty in one thousand nine hundred ninety shouldn't that be one thousand nine hundred one that's correct that is a typo there one charge one conviction there's just one conviction and it was he arrested twice one for possession for sale and one for possession sale involved but so i can't see that anywhere in the arrest documents in the court documents i see that transposed in the same document that i think it's callahan's looking at where there's a typo with the do you know of any court document that mentions for any charge of sale no no the court documents are for possession simple possession of a controlled substance ok so there's no court documents in the record i don't want anybody else callahan and i think i just did is there that you so he the immigration service was requesting a waiver that was necessary in order for the u v s to be approved and the immigration service denied the waiver that appeal and it was but it's been denied ok so the u v s is not discretion when it comes to reinstating a pro order removal and that they're required to look at i'm going to paraphrase all of the facts and circumstances or something like that so i have a question about the a file because the both briefs make representations without citations to the record about what was or was not in a file and in particular the july two thousand and fourteen letter which had attached with the the call of the expungement when did that show up in the  are really appreciated records that were prepared by it well the the relevant one here i think is docket five which is the record relating to the reinstatement right at that time the the administrative record  ball was the complete a file are they put on what's called the alien file in that in that record which is a very big record would include now with respect to the question about the expungement document in my believe in november of two thousand and thirteen so prior to the reinstatement of mr vegas prior counsel amanda stevens filed a motion to reopen and in that motion to november two thousand and thirteen ok is when i need to ask a few basic questions here could mean you're invited to respond when you come to the podium i'm not sure i really know when a file is i don't know where it lives i don't know if it's electronic i don't know if you had agency file maintained by the department of homeland security relating to the non citizen in there in all of all of the relevant record you know applications for example will be filed in the record in addition documents that are filed with the immigration court are copied to the wall a copy to the counsel for the immigration service and then those documents would and quite frankly i can't say consistently or uniformly but others documents would typically be filed in the in the alien file so when of ember of two thousand and thirteen when amanda stevens filed this motion to reopen she sent a copy with the expungement document she sent a copy of that to the counsel for the immigration service and then that document should have ended up in the in the alien file in the a file ok i would point out that you know there are documents for example in docket five which is the the administrative record created by the off ice officer there are documents in their documents from the that were filed with the immigration court that did end up in the in the alien file so you know we know generally speaking fire filed in the litigation i'll say that you think that winds up in a file although perhaps not entirely consistently so perhaps opposing counsel when it comes up let me know with a file is electronic and who has access to it documents in that are pulled out that are put in docket five the administrative records that we have that come out of the  of status in one thousand nine hundred seven so the the did it with respect to the reinstatement decision that was made by the immigration off the ice officer in i believe february of two thousand fourteen at that time the immigration officer has the a file available to him or and reviews that file so that expungement document would have been available to him or her at the time the decision to reinstate was made right there to answer to callahan's question that you watched it that it's not that it's this is been exhausted that you're not raising these arguments for the first time on appeal without you valley raised in the administrate a proceeding below your arguments relating to the conviction being vacated in one nine hundred ninety nine in your application for adjustment of status in one nine hundred ninety seven so in july of two thousand and fourteen after the reinstatement we counseled the serial theory or filed a motion to reconsider making those arguments putting those arguments explicitly in front of the immigration officer the ice reinstatement officer and asking the officer to reconsider that decision in light of the expungement beginnings so one step earlier though a minute ago who i thought you answered in response to one of my questions that the previous counsel for petition it your position that as far as you know the first time the government knew about the expungement was when she filed her motion twenty thirteen is that right yes ok november twenty third to november ok yeah so if you just get something expunged and it's for rehabilitative purposes alone that doesn't that doesn't you're not home  first offender act in the usa that was his first offense in the well but there's mention in the record of a something for sale and then simple possession and he also violated his probation you can't because he it seems that he you know he that he violated he immediately returned so the chronology is in  to there was not a conviction at that time they may have done some they told him to go to probation or go to some classes each parent lee missed some classes and then what was that arrest for convicted of he was arrested well at the time of the arrest there may have been some talk about his about a seal but that's not always charge and that's what he was convicted of he was convicted simple possession of a controlled substance in if any probation violation happened prior to the conviction so that the well what about the fact that he after he was removed he immediately reached return that happened in two thousand and eight after the expungement occurred and so after that conviction was off his record so the any any violations after that would not affect the if effect of  guess is a new mayor may not be in a position to know the answer but my guess is that the time lapse between the crime when he was fourteen and the conviction three years later is explained by the state can decide whether to charge him and he did something like mr classes was then triggered the criminal proceeding going forward yes i don't think the record is entirely clear about that what is clear is that there was one sure the charge and when he was fourteen and the criminal charge being brought i don't think that interferes with the relief under the first offender act correct that's my understanding as well ok what was the misprision of felony that occurred i believe in two thousand and twelve or two thousand and thirteen i mean that for it was for he was gaming is an animal fight a cockfight ok that was out of that charge it wasn't out so he has four citizen born children correct but he was with the same woman for a long time but then he married her yes he's been with this woman in fact he was many years later or something like that yes in fact the original i went thirty petition that was  adjust his status was filed in one thousand nine hundred i believe in one thousand nine hundred three twenty five years ago or so so what happened then there was like kind of a fourteen year period where he didn't do anything until he got arrested again and then he's ok yes and then you know then the immigration service reinstated the prior order of movable so what do i do with the fourteen years ray did not thing well that i don't think that's really relevant with respect to the issue about reinstatement the the  basis that's quite clear under the board president cases freeness and malone so at the time that he at the time that he was deported had it been expunged at the time that was to put it was deported in two thousand and eight deported at that point when the order of deportation had already been deprived of the legal basis and should have under lou hand and this court's on big decision in your eyes to me your best argument when you wait that long that crime and then there was an order of deportation in in november of one thousand nine hundred six or an order of deportation against him based on that conviction about a year later the supreme court in the de pasquale case issued a decision that made it clear and then the board said at that point the order of deportation no longer had a legal basis for it at the time he was still serving his sentence for his conviction and a couple years later he was deported from the united states about sixteen years later he came back into the united states illegally and then the immigration service was attempting to reinstate that old order of deportation and the board said well even though that order of deportation might have been valid at the time the immigration judge entered the order of deportation the subsequent developments that happened before he was deported made that order lack a legal basis it was no longer effective and therefore the at the time that he was deported the deportation was without a legal basis and therefore the immigration service cannot reinstate that order of deportation as i think freeness is really on all fours and in this case like in this case the there was an expungement prior to the deportation that deprives the order of is what we've taken you over time let's hear from the other side and then we'll put three minutes on the clock for a vital thank you in the event the court determines it has jurisdiction mr vegas claims fall short if he cannot demonstrate a gross miscarriage of justice thereby allowing him to collaterally attack as previously executed will ever move you can test what we just heard that at the time of his nine however is the court pointed out mr vega never notified the agency of that until two thousand and thirteen no i'm not asking about notification i'm asking about was there a legal basis assuming that there had been notification that is to say notification only tells you there's no legal basis so i'm asking you was there no legal basis there was a legal basis your honor when when they look when the agency look to reinstate the original order is the look at three things they look to see if it's an alien i'm not asking that i'm  a different question ok we were told by your colleague on the other side that when he was deported the conviction had been expunged and that conviction had been the basis for the deportation  the conviction is expunged according to your colleague that means there is no legal basis for the deportation how do you respond i believe there is a legal basis still for the deportation because although the the conviction may have been expunged he never pursued any sort of f i f o relieve or anything with the agency to notify the agency so the the h s officer goes and looks to see so your argument is that if someone had pursued it at the time of rehabilitative statute he needs to pursue that relief with the agency to notify them of that ramirez ultimate rano five sixty three f thirty eight twelve he has to show one it was a first offense second he had no previous first offender treatment pursued it did he qualify no your honor he did not pursue the way to ny and you're not answering my question had he if he had pursued it would he have qualified that's my question if you had pursued it and he had made the showing that he has to show it is possible yes you are dodging the question because you said if he had made the showing had to show knowing what we now know if he had pursued it with what we now know would he have qualified just i don't dispute that he would have qualified likely would have qualified for but the point is is he did not exercise due diligence in pursuing that he never raise that issue with the agency until two thousand and thirteen which is some fifteen twenty years later after he actually receive the expungement removed he'll legally reentered remain in a legal status for a number of years and then twenty thirteen around the time that he was arrested for the cockfighting incident in cuba the miss presumed of a felony he even pursued the motion to reopen regarding the ineffective assistance of coun expansion is that he didn't raise an interesting government's position for the most part i just want to understand this that if you sit on your head you know if you sit on your hands if you don't meet your burden to show that some paints expunged then you just can't command that much later when you get come to the attention of the authorities and you've been here illegally all of that time you just don't get to attack it yes your honor particularly when he didn't  something like that that he just cited when he was up here i am not familiar with a show that i can't thank you i asked just a moment a little bit out of what is not kissing your brief ok so it's in the brief ok well one that will never be a board decision so it wouldn't be counsel i have a question and maybe this gets back to what i'm trying to leave the courtroom with which the understanding of a file yes your position in response to the attack callahan's question has a lot to do with this individual not raising the expungement not raising the argument to what not which i appreciate i'm trying to figure out how we know that's right can you tell me what's the a file where is it who has access to it it's a good question or out of a file something that the part of homeland security maintains i myself is the lawyer for the day i have never seen  stuff and i understand the burden argument let's not get all the way down to the end of your decision tree as i read your decision tree i said earlier i think that i didn't have a lot of discretion to reinstate a prior remove all order but there is a requirement think that they consider all the whatever reason we're going to put the individual back in regular to forty proceedings they have a hearing for an immigration judge and they can apply for relief in this instance d h h s looked at the file and they're looking for the reason i'm looking for three issues  place or not and so that's what i struggle with how do we know somebody took a step back and said oh here's what happened there's a conviction many many years ago one not two because the government i think it's a typo it and maybe had the misunderstanding as we had or were trying to figure out whether one or one or two criminal charges there's actually just one i think pretty clearly and so on and so forth but i but i don't know whether there was a human being who pretty reinstatement had an opportunity to see this  providing evidence or providing a same as to why should be reinstated he declined to do so at that time but he went paint with a handwritten letter that his lawyer prepared for him to his credible fear determination tank please include this guy's convictions expunged that posted the decision to reinstate by five months or and and so which gets me back to the question is there some time limit by which he has to say here you know raise his hand and say this was expunged or where do we look for that i don't know if there's a particular time limit he got that wrong i don't know for certain that i would presume it would be in the file and there is the presumption that there is this he would sort of do these fully and they would review the entire file which likely included that motion to reopen though that information should be and should have been in front of the government agency agent making the decision i thought it should have been yes your honor again if i would have been radically incomplete if that what information was not in the file potentially yes or only mean potentially it should have been  at this point he was denied that right that's my understanding yes so what is is his only way he can get relief is he has to have he has to attack th terminated he goes back before the agency he can reapply again for adjustment of status but he has other problems then he has dismissed prison of of of a felony conviction which you know neither the agency is ruled on that they have that may make him the older boy as well for adjustment status so about the failure to raise this issue of the expungement prior to the deportation this is again on all fours with the freeness case that i described before in that case similarly there were subsequent developments after the order of deportation and prior to deportation freeness did not raise that issue at all he didn't file a motion to reopen or do anything else to notify the board nevertheless when he was deported the board considered that a deportation that did not have a legal basis sixteen years later the board said that that cannot be that order cannot be held against him cannot be reinstated in fact the board sixteen years later reinstated his permanent resident status that he had prior to the deportation proceedings that that board decision for us is the president decision so binding on immigration officers that should be followed when when they are involved in their reinstatement decisions legally effective i think the board says it lacks a legal basis then there's a gross miscarriage of justice those are old cases but that's what they say yes and we think those are still binding on the reinstatement officers agency created an administrative record that it gave the court in that in the prior case and in that had been that the administrative record that was created there did include evidence of the reinstatement that was so that administrative record at that time march of two thousand and fourteen that's a month after the reinstatement of your hair was february twenty fifth you were always right but those documents were put into the file in november of twenty thousand and thirteen so think if this is the reinstatement stands you know then of course we he's got no no relief he would he would be deported but we think that the reinstatement cannot stand the case needs to to be processed for a hearing in front of an immigration court at that is he would be eligible for a waiver there's a waiver under eight u s c section eleven eighty two age especially after sorry discretionary discretionary waiver that's correct and he would be able to pursue the application so he filed an application for adjustment of status prior to iraq prior to the newt reinstatement rules in march of one thousand nine hundred seven that decision that application has never been decided so where is your client and the second in last case this mor