good morning my name is mark the hall i represent the appellate royalty is martinez i would like to direct my own opening arguments to the sufficiency arguments in this case and specifically to our argument that the government failed to prove that the defendant appellant is in fact an alien i would note that the government's response simply contains no case except the case that deals with a motion to dismiss which is and that the government failed only thing that's devices is a birth certificate from where i don't think that's the only thing that suffices in fact in sotelo you had a defendant who was previously deported during the deportation the prior interrogation well of course he doesn't have to be represented by counsel in the deportation hearing but but what you're asking for is a rule that says in whatever context whatever admissions are made as long as it was without counsel inappropriate suggestion that he was in fact the wrong person a different person a us citizen the problem is is that we have no corroborating evidence from the government to indicate why we should believe one statement versus another  why there was one particular statement which had credibility over the others perhaps if you had been represented by counsel on one of those occasions and deportation proceedings that would be sufficient under such talent but we don't have that here what we have is just a series of conflicting statements mean during deportation hearings and no corroboration whatsoever as to which one is more reliable than the others the juries do that all the time they can listen to a witness except some of what the witness stand where they get well here's the point they get to listen to the witness the witnesses on the stand there was no one on the stand here this court i routinely note the difference between being able to view the witness and seeing the witnesses demeanor during testimony as a reason why you should defer to the district court judge because as the court of appeals you don't get to see that witness will testify you don't get to observe the demeanor here we just have prior statements are introduced by the government but there's no witness this which is this is a bill who can be judged based on their demeanor their behavior their tone of voice there's none of that other evidence which would go to credibility the nature of the statements themselves whether they sound reliable or not which are both made jury i mean they both seem to be made under similar circumstances in the circumstance of a deportation hearing and counsel statement and the context of a deportation hearing and i don't see t during the hearing appellant stated that he had entered the united states on may seventeenth two thousand and one falsely representing that he was a u s citizen puts it's more than just simply say are you a citizen of mexico yes your honor that's where i want to be deported to course he sent counsel so i'm more than that here in the prior there was interrogation and he agreed not only that he was a native and citizen of mexico he also agreed that he had falsely represented to his being the other person our our had been that individual in the a p me twenty fourth deportation hearing if we had some sort of identification some sort of cooperation is the person in th deportation hearing i'm sorry you know that only twenty fourth two thousand and one there was a different name proffered by the defendant revert of alaska's julio so what i'm saying is if the government had presented something some corroboration that he was indeed that particular person some reason that that should be accredited that that statement should be credited that it's reliable that it's trustworthy because this part of this course prior cases have clearly held that it's insufficient just  uncountable statement from a party partition hearing to prove aliens i mean there are cases from this court which seem to indicate that you really do need to present some sort of documentation of proof form birth now i can i think that there are other cases such as the teller which say well there there is other evidence and no case is that you have to come up with a birth certificate only that's the only thing that will do now have no case says that that's the only thing that will suffice but and here our point is that there's nothing that the government has offered to prove that he was really you know roberta velasquez julio as opposed to another individual and the district court did read a that the issue of whether or not he reapplied is a difficult issue for us because the language does appear to track to twelve however at i don't know if this court wants to go so far as to say that the only consent are the only permission that is sufficient to rebut the thirteen twenty six charge is this fairly laborious reallocation procedure where you send out your documents through the consulate to the attorney general's office how do we characterize and what do we do with the fact that and immigration judge  released the defendant power to the streets what is that term then i think it's troubling and i think it would be problematic to say that and immigration judges permission for someone to remain in the united states is insufficient and that someone could still be prosecuted for a prior deportation and under thirteen twenty six despite the fact that there had been an intervening the streets of the united states he was not deported he was not removed he was not physically taken out of the country the judge did not order that he had to be deported the judge did not order that he had to be removed the problem was the burden of proof problems in the immigration hearing on the issue of citizenship the government as i believe that what happened is that i actually found that there there was not compelling evidence to actually make finding that he was in fact a u s citizen but at the same time there was too much evidence for him to find that he should be deported because when your time has expired they will hear from the government evidence presented to the jury and that a reasonable jury could not as a rational fact finder conclude that the elements of the offense had been met and with respect to alienate i think the contradictions that were presented i mean that it between the immigration judge if both hearings and the the appellant in this case and in those he made contradictory statements and i think it is as your honor pointed out the jury can weigh that the jury can weigh the contradictions proffering that he's someone else so i think what is the government relying on to establish the only in the well i think we rely on several things first of all the deportation hearing from two thousand one the immigration judge's order that he's in that he's an alien  he's deported his admissions in that immigration hearing i think coupled with that you have the contradictions that he makes in the two thousand to two thousand and two deportation hearing where he's claiming now that he's united states citizen i think the jury can weigh that information moreover what you have is you have testimony from the apprehending agents in the scope operator that there was this person who was on trial who was identified by those agents in court as the person who hopped over the fence in the middle of the night and sued secluded area and tried to hide in the bushes and became abusive and resisted apprehension i think the jury can reasonably conclude based on that evidence and the other evidence that if this person really is raul diaz martinez a united states citizen that that person doesn't hop the fence in the middle of the night and resists after hanchen by the border patrol he goes to the port of entry and says i'm rob diaz martinez i'm a united states citizen and i need to come into my home country work at the very least as martinez an immigration judge provided me consent to come to the united states because i was released to the streets of the united states back a month ago he didn't do that and the drug has that information coupled with the prior deportation hearings the tapes that they listen to and then the testimony of the real royal diaz martinez who was called and the father i think the jury can take all that information in and reach a rational conclusion that this person is an alien was previously reported did not have consent to return to the united states and attempted to illegally reenter and so those are the elements of the offense those with that was the evidence that was put before the jury and that's three with you know it was not present in iran or if that information was made available but it was never presented the information with respect to the two thousand and three hearing was presented and brought out on cross examination in essence they would be i think that was the argument that the defense that was put forth at trial but we're talking about a sufficiency of the evidence standard here on appellate review and there was sufficient evidence for the jury to conclude that this person didn't follow the proper procedures there was also evidence for what are the proper procedures it is filing an eye to twelve it's not making a claim to an immigration judge with an incomplete record having a judge who who can't render a decision and then being released to the country into the country because immigration isn't prepared to go forward and the immigration judge kind of throws up his hands and says i can't render a determination here the jury had that in front of them and if they if they wanted to make a legal determination that that that that that somehow the government had consented to him entering they could have but they also had the contrary information the government's position which is the only this is an improper forum in which to hear that argument given that we're talking about the sufficiency of the evidence standard and a challenge a challenge to conviction based on sufficiency of the evidence if the senate wants to challenge that that immigration hearing in december two thousand and three amounted to consent then there are other avenues to challenge that not not after a criminal procedure in which the issue is now framed as whether the government put forward sufficient evidence to meet the elements of the offense i think more proper avenue for challenging that is is to challenge the regulations challenge the statute country again i think the defendant asked the jury as part of his defense to try to get down into the weeds of immigration law and the jury didn't want to go there or if they did they they they looked at the competing theories one theory presented by the united states the that the legally proper method of seeking consent is to file i think twelve versus the strategy employed by the defendant during the cross examination of agencies are trying to dry out that the immigration judges in two thousand december two thousand and three letting the defendant back into the country amounted to consent the jury didn't believe that the jury didn't see it that way and found that there was sufficient evidence to meet all the elements of the offense so i think they have a different case here  reentry i think so your honor i don't want to speculate on that i think there would be a tricky legal challenge i think legal it would be framed it quite differently legally whether the immigration judges two thousand three non decision if you will amounted to consent perhaps that would be a better venue in which to challenge it but in this place case it's obvious based on the facts that were present presented to the jury that the defend it got a break got a got a non decision that allowed him to stay in the united states in a quasi i or a limbo if you will he chose to leave the country and go back to mexico and approximately a month later instead of if you really truly believed that he had legal permission to be in the united states or was legally entitled to be in the united states the united states citizen  he would not have hopped the fence in a clandestine fashion and and been found hiding or trying to seclude excluded area and try to hide from border patrol the night that he was found and that evidence was put before the jury in the jury can look at that evidence and say you cannot possibly be a united states citizen or had consent to be in the united states if this is the means in which you want to enter the country  case just argued will be submitted for decision