removal proceedings and the order resulting from those proceedings which form an element of thirteen times it's all based on factual claims yet congress has forbidden the jury from reviewing those factual findings of those facts  rates for these for example were included some statistics on silent can be extremely high and extreme of the low depending entirely on the individual jew to cater in there the way that the exercise is for this does not comport with the supreme court's in th you look back at the history of this issue in the supreme court cases mendoza lopez for no fifteen said even with the safeguards of allowing a collateral attack as a pretrial motion even with those safeguards the use of an administrative it was essential the entire criminal matter was referred to the ministry of agency commissioners if they found somebody of chinese descent without the required paperwork were allowed to force them to do hard labor for deporting them or impose fines as franklin said no of course reentry that it is constitutional provided that judicial review is available it said that at a minimum judicial review must be provided but it did not address how you this i mean that you were wrongfully precluded from judicial review or that the outcome of the underlining underline order would change with judicial review no your honor this is a facial attack on the statute we did not bring any specific facts about the removal order that that issue of whether the person was here illegally and i left it with the administrative agency that's the problem just as dax in frankfurt or identified there is that this you can see a clear development where congress than actually puts it all to the eastern sea and then  something back to the jury but keep some things under the cover of this removal order this is administrative order and doesn't let the jury get into those facts but those facts are still necessary to the crime the justice even and twenty six was written and construed mendoza law as the forbidding from saying actually you know what i wasn't even bored of all or there's a factual issue where they haven't proven that on the board where there's a reasonable doubt about whether i was deportable at the time so these are facts that are getting essentially the problem here is that if it helps to look at it from the other perspective if the governments fall in if congress can amend an administrative agency adjudication at in another case which side of the rhode island commission to encourage morality and more recently the supreme court in two thousand and eighteen had the masterpiece kick shop kids i'm on the other sort of political side of this have these orders available to that help or hurt your argument or it just doesn't matter one way or the other in your view i don't think it matters your honor because the heart of the argument is  and so whether judicial review is provided or not no jury ever gets to find these facts there's no opportunity for that on this and also that even though as justice jackson and specter the senate going to fight even the judicial review is extremely deferential to the administrative agents so they agency gets the benefit of findings of fact is affirmed if there's any substantial evidence not proof beyond a reasonable doubt on there's no right to cross examine at least no and talk about the sense in my question is did did the district court acknowledge or even consider your client's arguments regarding simonson disparity or his stale drug conditions regarding the staleness of the drug convictions i do not believe the district court mentioned and he acknowledged now is the existence of those convictions in the that they were from that age but the argument that they identical and obviously they were not although they were similar i argued because they fall within the same criminal history category but the district didn't follow up on that question and didn't mention as far as i could about identical criminal history he said no i don't think you need to have identical criminal history in coaches ok that's fair the guidelines say similar record no not address every argument need that's a very qualified statement i think the district court need not address any non frivolous art or any frivolous arguments of the other cases well before that are published cases do require this report to address non frivolous arguments and i'm not saying it has to be expansive or in depth or super detailed it's just mr prez your attorneys pointed out that their directions are twenty plus years old never four that they don't really tell me lopez was very clear that the validity of the removal order is not actually an element of the statute and therefore there's nothing for the jury to when it comes to that and does a lopez was concerned primarily with a lack of due process ability after having been told that an individual is not permitted within the united states under the immigration laws they then take steps to do so anyway it's not the direct criminalization of an agency adjudication and i think that makes  turning to judge floyd's questions about the sentencing i think this court has been very careful to walk a line between requiring enough comments in the sentencing procedures to allow for effective appellate review and to provide an explanation factor which was the lack of deterrence over a consistent period of time once the district court has in fact acknowledged as mr cannon agrees that he heard these arguments that he considered these arguments and then says but this is what i'm basing my decision  those things in terms of trauma in terms of family needs those things and not even those of frivolous not at all your honor but i would say that the district court actually addressed in this context it pointed out the fact explained why it was picking argument in mitigation but then says some other factor justifies the sentence that it's giving but that automatically we can infer that the district court thought that that factor was outweighed and i don't agree with that i think the cases are clear that if the district court believes that this factor outweighs the arguments in addition it has to say that those factors are outweighed by this or a grief that a judge lower sentence would be justified except the need for say deterrence or protection of the public is higher in this case and point it doesn't have to be in any particular form and it can in fact be in the course of the argument if the district court interrupts and has questions and has a discussion just like we're having right now on that make its views clear about what it thinks about the argument she's inboard his united states citizen sons recidivate and in the circumstances regarding his abandonment by the biological mother and then to make an argument tying all those to three hundred and fifty three factors and then hearing nothing except for the factors that are an aggravation in the explanation sentence just just i don't know what the district court thought i don't believe the record allows anybody reading it to conclude what the district court made of those arms on and that's the reason we need a reminder available but the person didn't avail themselves of it previously or didn't exhaust their administrative remedies to avoid reaching the merits of whether a person has the portables charge there's a supreme court case now palomar santiago where of a person was a lawful criminal resident and this is a very easy issue for congress secure it can make the validity of the issue the warrant of an element again like it did before the tournaments the thirteen ones on one last note are they going to say time or these terrorist cases really we need to look at the flip side the problem here is that the government wants to extend contempt power to administrative agencies judicial order against a person can be enforced by the president as the person doesn't obey it but in no other an article three power it's an inherent article three power necessary to need you to or to the exercise of article three powers and extending it into the executive branch is is a bridge too far it is getting far too much power and violent separation a violation send it back but all of the attorney general to grant asylum in this court care so i mean for example how do you how did you do that what would that look like in terms of jury instructions for immigration judge a and gets asylum in his year the other goes in front of be and gets asylum the nine judicial review denied because it's deferential on departed and then comes back to see his family because of threats in his own country and he starts with thirt