at the border and i'm having a little trouble i agree with here are some opening statements but this individual on i don't know six occasions or more had notice  correct yes and no your honor he's being deported he's told you can't come back in coming back in would be illegal so you have to tab this piece of paper but maybe something's escaping me but after that many times of being sent back home and told this i'm just having some trouble with your argument so tell me what is the narrow area in which you think he can and i wan sneak through but you know find him so sure and i appreciate the opportunity to clarify because this record is not only a little bit complex in terms of how things transpired over over the previous decade but i think also important to keep in mind that it's extremely unusual what happened here was he was ordered removed by an immigration judge in two thousand and eight and there after d h asked expedited lee removed him a couple of times one year later in two thousand and nine the department of homeland security said a lot of net resident card it was his own card it featured the seal of the united states government it had his picture his fingerprints and i had an expiration date of two thousand and nineteen even by the testimony of the agents in this case that was officially valid card so a few months later the two other things i want to point out in twenty in two thousand and eight the warnings he received from the i j a said you can't come back i'm sorry you cannot come back as a permanent bar but you can reapply for admission despite the bar expedited removal in two thousand and eight  said he had a twenty year bar not a permanent bar also said he could reapply for admission so he got the data sent him the permanent resident card the following year a few months later he approached the port of entry presented that card submitted to inspection an examination it was a co equal branch of the department of homeland security there had been you know he had been told that he was removeable and had been removed on the basis of a prior conviction but now he's also being told not to come back he was told he had a permanent bar and that he could also apply for admission and then he was told he had a different bar and that he could apply for admission and then he gets this card indicating that he has permission to to come back and he did come back and was allowed in so i think whatever what's important here and i think considering the broader scope of the court's holding in this case is that mr valencia cruise may have thought this card might not be good right he had been removed before they sent him this card he didn't know if it was good or not he came to the port of entry once he showed that card they let him and he came to the port of entry again and he wasn't trying to  short sentence and he's removed to mexico that's correct your honor do we just but the issue here really is whether any rational trier of fact could figure or would believe  was in violation of the law but we can't discount the two thousand and seventeen happenings can we know and i think the two thousand and seventeen evidence is important for a couple of reasons so he had been st of all he was convicted that in that case of being found and that means remaining in without authority right and then when he was reince when the but it was here if he's found in the united states without authority that a little tipoff that he doesn't have legal authorization to be here he was told that again he was picked up on an old warrant and removed so it's similar in a way to what happened in two thousand and eight he was removable but that's different than being told that he can't come back and what happened in the reinstatement proceedings that followed is he unlike the prior move removal orders he'd received he didn't get any warning so now we have a situation where he st told permanent bar and then twenty year bar now no bar to coming back and i think another important fact to bear in mind is that they didn't seize his card we have seized his card i cannot tell you the answer that what i can tell you i can point to the record in this case where the without the express consent of the attorney general he never seeks attorney general help ever ever he never does he gets this card wow i get to come back into the country big mistake on the government's part it works but then he gets caught with the card five months sentence sends back to mexico and then he comes back and in this wonderful scene where he has a bottle of tequila and the card at the border where you go in las vegas he musta thought he hit the lottery and he never got the express consent and he just figured i'll give it another try right i think he did think let me give it another try because he had gotten mixed messages and i think  got to hear all this and they could understand that maybe the government had made a whopping error and maybe they should a charge that against the government and said not guilty but they didn't so what  that makes the verdict so impeachable or so incredible that we should tip the verdict because i think you have to look at two things that happened here for the jury st of all the intent that they were told to find the intent they were instructed on was not an intent to defraud it was intent to go at large an at will in the united states which he had and it was the intent to enter without consent which he had and so then we have to say we have we have a guilty mind here under the law and the government's argument in this case appears to be that that's enough that that's enough for an attempted reentry and i would i guess i would point you to really fundamental principles of criminal law which are that that's not enough that you can't punish a thought crime there also has to be a substantial stuff and it has to be a substantial step toward consummating the offense and which in this case is an illegal bridge with this bottle of tequila and the card saying i'm going to vegas isn't a substantial stop not toward committing an illegal reentry because the agency here has the authority at the port of entry the designated port of entry following proper protocols to say no we're deny her admission we're voluntarily removing you we're expedited lee removing you you are inadmissible you cannot come in or they could admit him and what he said he did roll the dice he didn't know he thought this might not be good but it might be good i will present it for inspection i'm not jumping the fence i'm not using a counterfeit i d i mean i think if i could use an analogy and i do want to reserve a bit of time but you know if you you have a starbucks card and you don't know if it's got money on it or not you think it may not but you go and you present it to the cashier thinking they'll let me know if there's money on here for a coffee you're not walking up to the you know every governor has taken the car you haven't had a notice from starbucks and you can't come in the school i think in this case we have to look at he was he was told and he was removable he was told that there was a process for coming back and he followed the proper process for seeking admission nor had he gotten a notice from starbucks that his card was expired whereas here he knew that he didn't have proper authority from the government and they're saying that knowledge isn't enough but when you have the knowledge you admitted that he had and then the physical effort to come through with this card doesn't that give him the  the plus factor i think if the court held that way what that would mean was that anybody who came to the port of entry thinking i have this visa i don't know if it's good or not i've been told that it might not be good but here it is and it looks ok and i want to try to come in i want to go at large and at will and i'm submitting myself to inspection and examination if this court court holds the way the government would have you hold that person is criminally culpable for essentially what i think we can agree is morally innocent conduct saying i know i am not permitted to come back into the country one time for life one time for i don't know you have to go through them for me for twenty years or five years without the attorney general without seeking permission of the attorney general and he knows he has never sought the permission of the attorney general except your honor if i could just respond this court and proceed as this court on bank recognize that there are means and mechanisms to apply for that consent at the port of entry that there are within a specified period of time after removal you can seek that consent at the port and interested us all of our it said that there are certain waivers in focusing this would be i'm saying that he was following the proper following the proper procedures to seek entry in mr valencia cruz's unusual circumstances or in the circumstances of someone else who you know is seeking protection who is who might be a little bit frightened me and said you know here here's my card and i would like to of course speak with the attorney general but i know he's not here so like to speak with someone else because i'd like to get his permission to enter well that's not what he does he hopes but things will go well they don't go i've been with the u s attorney's office san diego for nineteen years i've never seen a case like this so the muscles just thought hey this is the greatest day of my life i got i hit the lottery i'm going to use it again and work licensed by five months i was in something that i'll do it again and i can understand it in two thousand and nine when he gets the card and then a two thousand and ten when he's able to use it successfully but i would say even you don't even need to look at all the history of the deportees just go back to three months before this incident and i believe the return to this country five days later he's deported three months later he shows up at the port of entry and he suddenly think something's changed that is not a rational inference and that's certainly not an argument that this jury accepted and you know i know what my post and uses a phrase a lot the fall the proper process for admission you know i would take some issue with that only to the extent that sure he walked through the port of entry he looked at the immigration at spector's he answered the question but by presenting an l p r card which he knows is no good he is representing that he has a right to be here in effect an excerpt of record one hundred and seventy five if you look at the back of the card it says quote the person identified by this card is authorized to work in reside in the u s and quote that's an entirely false i mean other than the fact that he doesn't melt those words by presenting the card he's effectively making that representation oh if you would really turn it on its head you would say no he's not making it the card is making it in the card was issued by the u s government perhaps ineptly but that's what the card says and that's the government issue then he's in possession of it that's their argument right but if that were the end maybe there might be some traction there but you cannot ignore that that three months before and i know the people touched on that i mean that's a solemn proceeding for him to take a conviction in the swear under oath that he has no permission and that's seven years eight years after he received that card so even if yes i agree it probably felt like the jackpot when he came back he knows and he was able to use it once but then he took a conviction for it i mean there's no question that the chords and invalid legally there opening statement admitted that the old p r card quote was actually no good and quote so you know they made a good effort before the jury it's funny when i was reviewing this case again the last few days i thought you know maybe this jury wanted to send this the government they could punished us they didn't and the question now is onto the liberal lens of sufficiency review you look at the evidence in the light most favorable to the verdict and i think here that the conviction has to stand a just a couple other points i want to me tell you they made two mistakes you gave in the car in the st place and then you didn't take it away and the nd place so there was actually two times that the government messed up there too but again you know after that i think it leaves no shadow of a doubt at least they did take the knows their imputed with knowledge of the law that they can't return without consent so you know to the extent there's any concerns from the court about that i want to leave them in effect i think judge faris you know you pointed to it as well you know this could have been that case it was it when he came to the port of entry review the record again you know exit record seventy nine he says he's going to las vegas and he has his bottle of tequila at no point does he say hey i have some questions about this even after he sent to secondary acting innocently and really has no idea what's going on and who had just been deported three months earlier is the six deportation in his life he would have had no reason to lie so you know on the facts here there's no question that when he came to the entry he certainly wasn't going there asking for help that the record disproves that so i think here again under the liberal standard looking at the light most favorable to the verdict read a reasonable jury heard all this evidence the defense put up their theory they reasonably found with three months earlier pleading guilty and being deported that this defendant knew that this calling was invalid and if that's not a substantial step towards legal entry it's hard to think what is it actually the very last about his green card he could have been charged with attempted reentry but that wasn't the charge in that case and i understand that's dicta but that's something that my opponent featured heavily in her brief we would say how is this any different sure on one hand i think in that case the person virtually you put it back on the clock we'll let you go a couple minutes extra already but i want to give you some time that rebuttal i just want to make two quick points cancel just sit up here and said he knew and if that's not a substantial stop what is that can't be right the covenant is singularly focused on his intent here but we're talking what we're talking about is substantial stuff and the government is looking at these post arrest statements he's already been told he's been arrested for illegal re entry and he says  no prior departs i don't think that you can take that into consideration the crime but what is in your view the person i said legal questions before us all of facts questions have been handled by you have a trial the verdict came out against him and what puts a legal question before us the legal question before you is can a person who presents his true identity his true identification at the port of entry for inspection and examination by an immigration officer at a designated port have committed a substance a substantial step toward precise and let the just verdict say you see we've we've we've got that seems to me that's a fact question jury and zip and now you want us to override the jury finding and on what basis do we do it tell me what the what was wrong what is the legal question that should cause us to say this lead the jury verdict the the legal question is that a person who follows a proper procedures that cannot have committed an unlawful entry and that entry is a term of art a lot of legal term of art and that fact question was answered by the jury in the wrong way and that's what we're putting before this court and i just want to make one other point quickly to clarify what we're what we're not saying here we're not saying that that because he had this card that because the government didn't take it away because they made a mistake giving it to him in the st place that there is that he should be allowed in the country we're not saying let him in because he has this card where the agency has full authority to send him back say go back to mexico you cannot come in with this card and by the way we're taking at this time we are saying is that this person cannot be cannot be held criminally liable for attempted reentry and this court has recognized that card that is far beyond the bounds of what congress intended thank you thank you think we have your point in mind the case just argued is submitted thank both counsel for the argument this morning