and we'll move on to our fifth case today not yet expired he felt compelled to approach a border inspection point in texas and attempted to make his case to the two officers sitting on duty but then something unusual happened neither of the officers actually questioned him at the border one just said i'll come home and the other simply allowed him to pass through into the united states without any comment mr mysterious then lived in the united states with his family for another twenty one years then last year in two thousand and sixteen the government attempted to reinstate mr c s as prior of the ruble and we think that that's improper for three main reasons first binding regulations preclude reinstatement of removal where the non citizen was quote unlawfully admitted going to the united states that's a bit of an overstatement so you're right that the regulations don't preclude that the regulations set forth evidentiary items that the  immigration officer is authorized to consider well i think i think the regulation put it on the scale about what the outcome should be well i think the regulations are a little bit clearer than that i  think and just to quote the regulation this is eight seats c f r to forty one point eight it says quote in establishing whether an alien is subject to this section in other words whether it's subject to the provisions governing rein statement the immigration officer shall determine three things including quote whether the alien unlawfully re entered the united states and then the regulation goes on and says in making that determination quote immigration officer shall attempt to verify an alien's claim if any that he or she was lawfully admitted so the inquiry under the regulation we think really boils down to whether the alien was lawfully admitted that that position basically means or it's the same as arguing that regulation redefined illegal reentry as that i don't think that's what the regulations do and i think that the statute that's what your argument entails that's why i suggested it's an over reading of the regulation it basically is a reading of the regulation that redefines the statutory terms united states illegally but it doesn't clarify what kind of illegality it's referring to and there's a longstanding distinction in immigration law between substantive illegality and procedural for purposes of adjustment of status not for purposes of reinstatement of a prior order of removal well it's never been applied it's never been applied in that context but the but the the the concept of an illegal of been illegal re and entry into the united states for purposes of adjustment of status in those cases the courts have drawn the distinction between a perceived really regular entry and a substantively lawful entry and the question is whether right this sets a different context here we're talking about an illegal reentry following an order and it's a very different context right and there's no and there are no cases that well there are no cases from this court that directly speak to the to the question of what that criminal statute is provided it shows what congress is what congress does when it wants to sweep in these these very broad categories aventures i think your honor is referring to eight u s c thirteen twenty six which provides i'm start yeah yes which i'm sorry thirteen twenty six a correct which provides any alien who enters attempts to enter or is it any time found in the united states shall be fined imprisoned not more than two years or both so that that is obviously a statute that's that's referring to any kind of entry if congress had wanted to to  permit reinstatement for all categories of entry after a prior order of removal it could have said so or it could have said any entry where you haven't received the requisite permission from the attorney general but using the term illegal doesn't necessarily speak to that speak to that distinction and i think a very good example of that is eight us c section eleven zero one which provides the definition of admission and that statute provides the terms admission and admitted mean with respect to an alien the lawful entry of the alien into the united states after inspection and authorization by an immigration officer so here you have congress specifically linking the concept emission in that context refers to a procedurally regular entry so what you have is is congress linking the concept of lawfulness and put it said illegal too but it used lawful rather than legal which i think probably has the same meaning but context he's already been previously removed from the united states and the cancer can found that in that context substantive legalities required not just  removed sure and we acknowledge that the circuits decision is is contrary to ours contra is contrary to our position here we have knowledge that in our brief but i think that that it's not necessarily inconsistent for congress to impose criminal penalties on one category of entry but but preclude reinstatement in the same category of entry because when it when and when an alien is subject a criminal prosecution under eight u s c thirteen twenty six the alien is is is given a host of procedural protections required by the due process clause the reinstatement statute is is an extraordinarily truncated procedure that the that that a number of courts have found to be very close to the constitutional line and the and i think congress could have legitimately distinguish between between entries that it would consider that it would consider illegal for the purposes of thirteen twenty six but not warranting this kind of truncated reinstatement procedure and i'd like to reserve the remainder of my time unless there are other questions please the court benjamin mark moss for the respondent the attorney general the court should up hold ices reinstatement of masseuses removal order because as this course factually indistinguishable case cordova so too makes clear a previously removed alien can't just engage an unlawful self help and try your luck to sneak back and toss and alien who does that as a violate it's section eleven eighty two a nine and so reinstatement is proper for three reasons i shall briefly summarize first the statute plain language indicates that it's substantively illegal removal is in i'm sorry a substantively illegal re entry is indeed an illegal  this court's precedents have acknowledged that common sense plain language reading and third is perhaps the most important reason is that a contrary ruling by this court would incentivize aliens who are facing reinstatement to say oh  i was waved in without any record having been made and of course it's difficult to prove a negative for the government and so such a reading would frustrate with this court recognized in top bewley most as congresses plain intent to expedite the removal of aliens who having been removed then go on to violate our laws again by re entering without the attorney general's advance consent now why would regulation  concession and quote if the only way to be lawfully admit it is with the permission of the attorney general why not just look at the government's dot abang yes and be damn is there a way to read that regulation that is consistent with your reading of the reinstatement statute yes there is judge wrote there the government reads that regulation in that reading is entitle to deference if the court considers it to be a reasonable reading as providing process instructions to what the immigration officer is required to look at counsel refer to it curtailed procedures and this regulation is designed to provide careful consideration of all relevant evidence about whether somebody might have affected a lawful reentry and so to specifically get to your honor's question about why ask the alien well imagine a scenario where the the rules require filing a form it happens to be a form to twelve that's the point that you file in order to request the attorney general's advance consent but imagine a scenario where there's a mix up  form got lost in the mail there's a dispute about whether the form was ever received so it just makes good sense for the government to say hey wait in addition to checking our databases as the regulations require and as the agency did here let's make sure we ask the alien if there's anything that we should be looking at that might show that the reentry was in fact a legal as opposed to an illegal reentry and so that's exactly what the regulations designed to do that's a reasonable reading of the regulation and that regulation that interpretation for one thing is owed our deference under this court's joseph case and further the agency has also issued a published interpretation of  actually indistinguishable case and concluded that very similar circumstances the reentry was illegal because it was substantively illegal now when that very same petitioner cordova soto got to this court this court in the court of a sort of two case acknowledged no fewer than nine times either using the word illegal or a synonym that that kind of a reentry is indeed an illegal  purposes this court conducted an analysis applied the lot of the facts and that is a holding and that is something that this court is obligated to follow so this court is not drawing a blank unless we change our mind certainly honor unless you change your mind but we think there are good reasons not to change your mind so that that's for the best for the plain language and the precedents and let me just touch briefly one more time on the the importance of the consequences of today's possible ruling that the court is being asked to decide to imagine what aliens could do if all they had to do was allege that they were waved in all the sudden you've got a really great way to so i think your honor they're actually kind of it's a two part answer because this type of scenario may have been more common in the past in the ninety's and earlier before nine eleven before various tightening this type of thing could have happened and here the agency assumed without deciding that that's what happened but but currently this scenario is less likely to occur today but there still is this policy issue because people they have to do is say oh i reentered a long time ago so eventually the cases will potentially graduate out of the system but in the meantime there are there are perhaps decades of cases that would seize upon a ruling that says oh there's a difference between substance and procedure which just by the way is not the only board decision that addresses substance procedure that case doesn't apply but there are other poor decisions that also don't apply that happened to find a different that substantive illegality matters so but those cases just really aren't on point don't interpret this action and this statute language is plain so for those reasons we asked the court to uphold i for just a few just a few brief moments we think that if the if the statute weren't entirely clear if it what if it was clear that what it meant by an illegal reentry there would be absolutely no point in having this regulation which refers specifically admitted and which the government has long interpreted to refer to a procedurally regular entry i think the government refers to it as a process instruction but what would the point be of going through that procedure if the got if if it didn't actually bear on the question of whether a reinstatement was proper so i think judge over at the point on the nail on the head which is this this procedure would be meaningless if the government's if the government were correct the statute were were had already been entered and upheld by the tenth circuit the meaning of the reinstatement statute or the regulation were not before this court in that case and then finally on the point about the supposedly implications that this would have in other determination on the on the reinstatement provision so the government is free in other cases not not to do the same thing but in this case there's been a net there's been never anything in the record on mr c it's count account into into question and so i would just close by saying that we're asking for very limited relief here we're not asking for the court to rule on mr misuse or remove ability or rule on whether he's in time any relief from remov all we're asking for is a traditional proceeding to determine whether he should be removed from the country where he's lived almost entire his entire life and where his entire family lives so we would ask the court to grant or to the thank you thank you