third case for argument today is fitzpatrick against  stroh's good morning or honors me please the court richard heinous on behalf of margarita fitzpatrick this is the consolidated appeal of in matter of fitzpatrick to be a decision as well as the b i a's denial of margaret if it patrick's motion to reconsider margaret if it's patrick is a lawful permanent resident who's been living in a night state for fourteen years she's a forty nine year old law abiding mother and grandmother a registered nurse and if the order that's at issue here is let stand she faces permanent banishment from the united states margarita fitzpatrick is a woman who defers and follows the law she's never been arrested no violations of her immigration status and her history here and she goes out of her way to follow the law by the teeth so much so as demonstrated by the events at the department of motor vehicles permanent resident margaret fitzpatrick goes to get a driver's license and displays clear evidence of her non us citizen status peruvian passport and a green card indicating lawful permanent resident in the united states the official d m v asks would you like to register to vote and as opposed to asking m i eligible to register to vote or can i she asked am i supposed to which the government official answers it's up to you now to murder it if it's ok that's a problem for your client in this case it's th admits that she checked the box on the form claiming to be a us citizen right that seems to be pretty much the beginning and the ending of her problems is there you're not denying that she did that no i'm not but i'm i am stating that that is a one element of a bigger picture and if we pan out over rule come on in which said that if some if an alien checks that box and then and for a federal official that's good that's the game that's the holing a come on respectfully judge and if we're going to c'mon e i would say that based on this court's holding in keath a number of factors there this case actually is just like a play the alien expressly testified that she did not check that box and we were mandated so that the agency could determine whether she had  well that was the issue for remand in keith but the remanded issue in keathley is not contested in this case in this case we have a woman who checked the box but right before let's let's look at where this falls in the government solicits for voter registration she didn't go in there asking to register to vote the government sees all her ella documents on the table i'm not a u s citizen i'm a permanent resident when she's box claiming to be a citizen falsely and then votes is still not still subject to rule no but in keith understand judge but you've got you've got here and keathley name several elements that in order for the court to determine the immigration court to determine that murder if it's patrick is removable we must determine that she voted in violation of law and that you have to factor in criminal law defenses which is what keith levy holder stood for that's why the case got remained it it didn't say it depended on box checking or no box checking like  for the board to determine well can we say and that money was not remanded and that was the difference between the two cases well kim money was an undocumented alien and she pretty presumably wanted to hide his immigration status to avoid detection that was the language in keathley but like keithley missis was patrick was a permanent resident she didn't have any intention of checking a box until she was given the permission to do so with it's up to you reasonably understanding that that means you can well is there any doubt that the state official with whom he spoke knew she was not a u s citizen i can't speak to the mind of that official but let's i think it's fairly clear if not entirely clear that a person who shows a green card is not a u s citizen doesn't matter that the state official only asked her to register because he was required by law to do so i don't think so because we're not the fact that the system has flaws in it isn't it becomes my client's problem and her defense doesn't depend on that being the system maybe there's something wrong with the system and in her case if we're going to prove remove ability by clear and convincing evidence we must take into account the criminal law defenses would take place in the context of a hypothetic criminal prosecution that's what keep levy holder holds and if we had a criminal prosecution of margarita fitzpatrick and there's been none would there be a violation would there be a chill convictable charge when a woman honestly presents at clear evidence that she's not a citizen a box is checked i don't know we do know that it arises out of confusion because if a person said i'm claiming to be a u citizen they're not going to be showing evidence that they're not of the same time and afterwards that documentation is excepted she is going about her business approaching the secretary of state's office and getting a driver's license and she's waif through the government knows the law better than i she was confused now let me ask you this what should we infer from the d m these policy change regarding how its employees present voter registration the individuals applying for driver's licenses well from that we can infer that this is a problem and there's a systemic problem and we can also infer that this court has two cases better rises out of that problem perhaps some of the parties are some are more culpable and others such as mr c'mon but it's clear there's a problem the immigration service knows it's a problem be write a specific policy memo on it this court of immigration appeals had the precedent decision of key fully available to discuss it to go in address the issues in there because we have to take into account the criminal law defenses that decision is wrong the it's not supported by substantial evidence and the courts to be i use decision on the motion to reconsider is wrong it contains clear errors of fact to be i use decision denying the motion reconsider says there was no confusion or that mrs fitzpatrick was a misled it also says there is no discussion about the form there's dozens of pages of both confusion discussion of the form and misleading based on those two mistakes this court has ample evidence to reverse testimony he said i can't tell you what to do and that is the exact opposite government official telling you what to do the government officials are firmly stating i can't tell you what to do you're on your own here that simply does not make  stop by traffic case so he shouldn't have said since you're not a citizen if you register to vote that would be a violation or only citizens are allowed to register to vote at the  any time the individual check the box stating that she was a citizen on the registration form regardless of what the state official said well no because in kidney the state official there was something factual dispute and actually people are not fine in fact might she only registered to vote because she was asked whether she wanted to register by the state official mean had the state official not brought it up we wouldn't even be here perhaps for the clerk a someone who was not a citizen do you think that was appropriate when he knew he she present it with the green car clerk as required by law to do that so the clerk is just acting upon what he was told his job ahead and thought that form anyway i'm directing you to perform that act as the courts rule and come on status has to be some kind directly about what i'm saying is why was she even asked the question she's not even a citizen but you have a clerk just doing what they do to every person that comes in so i mean that that's a process i think that's a problem there was a hypothetical raised in her brief and i'd just like you to respond to it the police officer knowing that a foreign individual is under age ask if she would like an alcoholic beverage in the individual says to the officer should i an officer says it's up to you do you think entrapment by a stop a would apply there no i don't believe apply there either again the rules are very narrow it's hardly applied as it's course not because you have to have a government official telling you what to do simply backing off or letting you choose what to do put your own actions well in kamandi the petitioner didn't speak to an official before filling out the application here mrs fitzpatrick had a conversation with an official regarding her ability to register why doesn't this way in favor of applying entrapment by a stoppel and also what more could she have done you and she was obviously confused when she asked you know can i should i should i you know should i should i register and he says this up to you so doesn't this way in favor of applying entrapment by stopping no i think you have to have some directing him to do an act again and assuring you that act is proper simply saying it's up to you i can't tell you what to do is the opposite of directing someone to do something now mrs fitzpatrick has a clean record she's accused of a nonviolent offense and she voluntarily disclosed that she voted why isn't this a situation where the government should have exercises discretion regarding how it's employees present voter registration individuals applying for driver's licenses isn't that acknowledging that there is confusion when you ask people who are not citizens whether they want to vote and you say it's up to you are held to what you sign you look at the case you look at the form and if you read it there's no language barrier you sign that form your knowledge and you understand that and that's what happened in this case there's no clerk telling her that you should misrepresent yourself as a citizen she's presumed to be bound by that form and that's exactly what happened to my mind discusses that and as opposed to keithley where the facts may have shown adrienne they weren't there is still disputed that the government official actually filled out that form for and it's also important to note i believe that the record shows that what decision made fatherhood registration form essentially came from a conversation between mr patrick her husband first patrick testified that they discussed a form of tween themselves and he thought that perhaps a way to speed up or naturalization proceedings lots of register to vote right now so it was nothing directed by the clerk she was asked to register and it's custom cells as a clerk kept saying i can't tell you what to do so they decided what to do amongst themselves and the court in a supposed patrick's testimony cited what to do because he believed that also representing her to be a citizen might speed along the process naturalization they tended to and so again this is nothing by the government telling her to do this deportation order margaret if it's patrick would like her life back because she didn't do anything illegal from her perspective from your opponent's argument that there was an offer of discretion beforehand that was rejected by you or by your client that's not correct and maybe it was a what was communicated to him wasn't correct but i was and i was party to the settlement discussions and discretion in the form of reversal of this order and letting this be reinstated was asked for and rejected the idea of administrative closure in the case sort of this border sort of being left alone and not enforcing it there was some question about it but the government didn't even order that the end result of the settlement negotiations were we can't we're requires the individual acting to have the reasonable reliance on the guidance of a government official this entire set of events was propelled by the d m v official and whether it was by law and they have to or not does it make it right and whether it's by law or they have to does it mean a tram that by a stop will is not in play and lastly your honour's this whole transaction was defined by confusion because how would a woman who know she's a permanent resident who didn't go to the d m v for any reason other than to get a driver's license and up checking a box other than through confusion she shows her passport from peru she shows her green card ultimately issued a voter registration card so the rule of lenity when it comes to the construction of immigration step should say that if there's any doubt we rule in the favor of the immigrant and in this case the rule of lenity dictates at the very least if not terminating proceedings remaining for further what in your view did it occur after he was asked by the official absolutely i was not the attorney representing mrs fitzpatrick at the hearing but the transcript reflects that the entire discussion all confusion arose after the the question about voter registration was asked and it became a question not of if she could it became a question is if she should she was her deference her default is deference and in this case she wanted to do the right thing was confused how else would somebody who's a resident check a box that makes no sense whatsoever and then go on to honestly disclose the center says listen chip here so on that note your honors we asked that this court