was published on the thirtieth of may i got it just a few days ago and to my great surprise the board of immigration appeals accepted the doctrine of collateral estoppel the stop aware and early and had thirteen twenty six criminal proceedings established that he was a us citizen and therefore not eligible and they accepted that and said that eliminates all of his immigration consequences he fact was a handgun the b i decided that this was not a deportable firearms offense because the only conviction was a conviction for a concealed weapon should read thought that was important and he proceeded to do a very detailed u s versus taylor analysis on the case and asked the question is possession of a firearm an essential element of the crime of carrying a concealed weapon garcia was the originally convicted under a washoe county ordinance for carrying concealed weapons and the judge concluded no concealed weapon can be pair of brass knuckles for a blackjack or what have you and then he asked if he was prejudiced and he said yes he was clearly prejudiced and then he looked into the immigration court proceedings and found that the immigration judge at the detention center tourney lawyers o appeal and the judge read decided this was a denial of due process of law and on the basis that the original conviction was not a deportable of tents he dismissed the indictment yes i'm jumping ahead you're on him because when we got to the b i a they denied that collateral estoppel the night here and revise will take that because they cited a number of cases which were cited by the government versus mitchell and the sort of one hundred eighty three firearms they said well as you cannot apply collateral estoppel if you since you have different standards of evidence in the criminal proceeding which is thirteen twenty six and it is a civil proceeding which is a deportation now i quite agree with that proposition but when you look at those two cases and they're both u s supreme court cases held ring was  eighty three firearms there the defendant was charged was dealing in firearms with proper license which is a criminal offense he was acquitted but then they charged him with the forfeiture of the firearms which is civil offense but here we have a legal question was a conviction for carrying a concealed weapon a firearms offense and it clearly is not and so we think the board of immigration appeals is bound on the collateral estoppel now this question came up because garcia was detained by immigration and customs enforcement right in the district court was sent to the sheriff's jail in yuba city california recommendation that garcia had a very plausible case and that the rich should be granted by this court and i certainly urged the court to grant the rich because that would restore costlier to his original status to the legal permanent resident i have a problem here with and is that is that so we have a subsequent deportation that was initiated later on right yes yes and that's the one that concerns me because here the v i i decided that even assuming that the district court correctly determined that the respondents ninety six deportation order based on criminal charges was invalid  such a course this is not a defense against entering without inspection and that is a violation eight us code thirteen twenty five and it's a misdemeanor so fifty dollars to one for the all fine with thirty to sixty days in jail no i'm talking about remove ability though under the immigration laws not the criminal laws here my understanding is that the ditch remove ability under section two twelve a nine eight two was headed as its foundation the fact that he had been ordered deported on two other occasions and and had came back into the country firearms he had violated the immigration laws on two separate occasions by coming into the country and was deportable on that basis to but your honor i think you can argue that since gone with a legal permanent resident back without inspection does not mean he will lose his legal permanent residency it doesn't mean that he while aged eight u s c thirteen twenty five by entering without inspection situation where we might think about it your argument is that it's a b i a has reached a determination as to how they're going to apply collateral estoppel that gets deference from us i mean we might have reservations about whether collateral estoppel should be applied in the circumstances that that they that the b i a has found collateral estoppel to apply but your position i presume would be that that's not for us to right you're willing you want to well well this case to be going on for over four years drawn up we have three separate petitions for review i think we have a very serious question of just just we have some very serious legal questions and are i think it's quite appropriate for this honorable court to make that decision and i'm quite willing to accept that ok but i'll reserve the balance of my time and he faces a very high burden and getting the lights reopened for what he wants the court to hear that he would have to show essentially he would have to show gross miscarriage of justice right which it's pretty clear that he wouldn't be able to show here can the going to shift to him does it rather than just simply accepting what was decided the burden is on him that's correct and that's a very hard burden for him to meet in this case considering that he has admitted in several different instances that the weapon at issue was the gun so it seems that there you know there clearly was not an abuse of discretion in the board denying motion to reopen this case and so then we're back to grappling with this two thousand and four n t a in which he makes no affirmative argument in his brief to this court that he did not in fact enter  enter illegally and this court has held on several occasions that even if an underlying or a previous order of deportations and valid or even vacated that that does not entitle an alien to this type of self help that is to say to reenter illegally and then years later after sleeping on his rights trying to go through these motions to open up an earlier you know removal or it didn't become it's a general principle that if there's an order out there you must obey it and if you want to removal order he could've you know tried to go to the consulate and get a waiver of inadmissibility and come back to the united states and reopen his case properly he you know if that didn't work he could have presented himself at the border and said you know i could you please put me about an alien age issue this is a totally different issue i would have to you know look into the factual background of this case in order to compare how you know how was it was alien it's conceded or i just i don't have the information to rely on you know unpublished non presidential board decision at the board in that case appeared to say that we are bound by a court's determination that wasn't an alien now what we have in this case is i understand it is the reasonable doubt of showing that there was in fact a gun involved in this in this crime right now that the much lower burden immigration court clearance in evidence you know as i mentioned before you can't use you can't use the criminal burden to satisfy the lower burden and the petitioner admitted that that there was a gun involved in several cases in the in the you know in the oh i see in his brief the i j a notes that in that you were perceiving that the petitioner admitted that it was a gun so you know it just doesn't make sense to apply that the government didn't show it to a case here when it's pretty clear that that it's been a minute that there was a gun and all that there was no problem and therefore they want to show actually as of that he got off essentially on a technicality in the sense that there wasn't by the concealed weapon had not been defined in the charging instrument as a gun that he tell you when he actually pled but that that there was a gun in the picture he admitted and if you flip it over now and you're looking at it from the perspective of a person who's trying to utilize it on a motion to reopen trying to show that that somehow he's benefited by what happened in the district court but he's still got the burden now of showing a gross miscarriage of justice which means that the burden is on him to show it wasn't a gun exactly that's right and that that  described as carrying a concealed weapon and gun in parentheses that he admitted to so you know i'm not sure what how the charge was presented and in the criminal case but in the immigration case he appears that he admitted that even if the charge was having to do with a gun so yeah and so that you know that would just go back to my argument that he he can demonstrate gross miscarriage of justice which is really sort of the last line that he has here to get the case reopened because it's untimely counsel have in mind what he might want to respond to over and above that he's now those the order that was subsequently invalidated if you will by the by the district  in existence yes and he kept trying to come back again right without attacking in violation of the i and on the separate t twelve provisions that he was charged with right now which again he if that is a valid perceiving doesn't that rinder moved all the other issues right that's exactly what we're arguing that and so if we focused on that and if we decide that that is lawful final order we don't have to touch anything else right now and in deciding that issue your argument is that it doesn't matter whether the ninety six order of deportation is valid doesn't matter all that matters is the fact that it was in or right for the purposes of the two thousand and four e was based on and that's when you start and validate that at the time that he came in right right and he and if we decide that that one for some reason is flawed then we have to go back to issues of collateral mistah if we decide that if you decide that that's not there something that there's something wrong with the oath for proceeding ok then we have to then then the government falls back on the other stuff right that's one way of looking at it right right but petitioner hasn't made any argument in his brief to this court that there was anything wrong side from the  and he has argued affirmatively that there is any problem with the allegation that he did come back and you're and what what your your argument but save the oath for proceeding is the fact that it doesn't matter whether the other one is i just would like to read very briefly from judge reed well we get the picture and i think on that there's the problem is that he was accused of possessing a weapon but they didn't nobody said what kind of a weapon it was in the in the in the conviction right and the right to due process of law in his original hearing that that in itself is the gross truth carriage of justice ok let's let's assume that that you're right on all of that but now we're looking at the two thousand and four immigration proceeding and it's based upon his reentry into the country at at a time when he was subject to an order of deportation on two separate occasions you will argue that that subset that the subsequent finding that that that  for those importation orders should be and invalidated is is is should be taken into account but that clearly can't be right it can't be right because a person is not permitted to violate an injunction while the case is pending on appeal and when and when the end notwithstanding fact that on appeal the injunction may be overturned you simply have an order of a court that you're not to violate and he comes in and violates it later on it may be it may be that it was invalid but that doesn't give the person authority to come into the country to violate an order in the hopes that maybe some day the order will be overturned you follow me i  quite agree with you but what he did was enter it without inspection you know you are right he was also subject to a deportation order that was expanding at the time it had not been declared invalid and when he at that time that's true it this reminds me of the situation of an innocent man who was convicted of a serious crime sentenced to the penitentiary escaped with a kind of treachery later established as innocence is acquitted of the crime but then charged with the crime of escap from the penitentiary right now it was a state matter the the the governor would probably could not part and this is the question before this court i believe he was merely guilty of entrained without inspection and if he was restored to his previous immigration status with legal permanent resident that fact takes care of that it may be but we i don't think it's the function of an appellate court reviewing an agency agency determinations to swoop in like some sort of a deity and and quote do justice our job is to see to review what happened in the in the agencies to see prior what went on in the district court in the prior invite and the subsequent invalidation of this particular order that on two separate occasions while there was an extended order of deportation the petitioner came into the country in violation of the immigration laws and that that itself is a well that's true your honor but in that case you wouldn't you would never achieve justice because clearly he should not have been recorded in the first place we're talking about an eighteen year old when he was maybe should have been deported in the first place but once he was maybe he should have been coming