we welcome you to the th circuit today as the good clerk has already informed you our will by b has had a death in his family and therefore he is  tending with that our thoughts and prayers are with him and we appreciate this opportunity to tell him that and we appreciate him on the other hand  today honorable bybee and i are very very happy to welcome judgement oza who is a judge on the united states district court for the eastern district of washington he was sitting in this seat relaxing instead i'm here so it's really fun to have him come and be with me so we will proceed in the normal manner you need not worry that judge bybee is not here because you know that we are we are recording every bit of this and so what happens in these emergency situations like this we take this the transcript and recording and judge it by the watches in his chambers and then after he's through watching it then we conference and decide what we're going to do in these several cases so we are full well ready for emergencies like this and that's how we proceed in those kind of situations now what will happen this morning well we'll take up this hearing i don't know how many of you have been here before to advocate in front of us but i'll tell you a little bit about how it goes since i remember when i was in your chair and i wondered what the devil was going to happen when you come up to the podium the green light will come on as you begin it will keep going and you it looks to me like you have fifteen minutes each one of the yellow lights will come on as a warning that to your time is going to expire so when that comes on you need to worry just a little bit about the time will expire when the red light comes on then your time is done now it's a little bit and it's a little bit unnerving because the clock continues to run and  may not notice it but i did and i didn't when i was arguing but then it starts running back up so all of a sudden you think he got more time but in fact you don't hear time is over and you're working in overtime now so when you see the red light come on then you should do as best you can to sum up and i will not cut anybody off judgment goes in the middle of conversation with you or i am th you get extra time but if in fact we're not in the middle of the conversation then of course you need to quit we're going to hear the cases as they're presented on the calendar and when you come up we hope you'll states name and who you represent and we'll let you go on and do what you need to do in argument for these particular cases so we have submitted two cases on the calendar this morning remind you about that two minutes but and then judgment those are are in middle of our conversation of course with keep go on but so you gotta watch that for yourself ok thank you but i appreciate you persons who are to get this ignition is for persons who are not able to avail themselves to political asylum but nonetheless be in danger of being be be endanger if they are removed to their home country but allowed i would say that it does for that same reason i mean it seems to me those are really really relates to those because we're considering whether in a car is really of removal is precluded from and we're deciding whether she met the seven years or mission right those are the last two issues as i understood your assertions but if we talk at the three which is the regulation about that and i read some and i'm from oddo so that may not be exactly the way you say that versus holder you got to have both without a warrant and placed in formal proceedings and in this particular matter dishware was not in formal proceedings correct that is correct your honor a but some of the martinez is distinguishable because it do with that the underlying charge was relevant the location of the arrest wasn't relevant quote was relevant was it had to meet both without a warrant and placed in formal proceedings right there but also in that case what they say under the regulation is to sure it was not in formal proceedings and therefore we don't have any reason to suggest then that your client should be informed well we would say that that finding would be an error well i know you'd say to be in error but what i what authority do you have for that well and looking at the statute your honor and the plain reading of it well i read the statute and i also read the regulation and reading the regulation it talks about and it's got to be without warrant and placed in formal proceedings and at that point they would be advised of the reasons for the arrest and the right to be represented and then talk about or cezanne yes or no but i would note that if looking at the statute logically it would not make does clear non ambiguous and i can read it very carefully then i don't but otherwise if it's ambiguous which is the only way you can make that argument i have to give them deference stoner yes your honor so then i would say that it is ambiguous just in looking at but if it's ambiguous then i give them deference and they have got a regulation right on boy that says got to be both yes john or but i would move the court to look could read it and i don't have to worry about it i read it i pranked please think it's clear non ambiguous and you need both but even if i so therefore if i get to your argument i've got to say it's ambiguous and then i get to be  and then i have to say well goodness i have to give those people deference an ambiguous statute yes your honor but in what in looking at what the statute is supposed to be protecting it wouldn't make sense that an officer would not have to give that type of rights a reading of rights to a person until after they already have gotten all the information that they can use a minute if in fact we have two situations where that it can apply without a warrant or placed in for in an informal proceedings and at that point we can we have done what we need to do because these people are certainly not entitled to all the rights that are allowed to all citizens in the united states i would say that in this case your honor we are dealing with a person who is a legal permanent resident so i would say that she would be afforded more rights than somebody who is not it if that's so how do i distinguish matter of the r m c b i directly address that argument i i would plainly look at what the statute is protecting your honor and again i would look to the fact that there is nothing to protect if we have to if the officer is not going to give any type of reading of rights until after everything all the investigation is completed then the statute would be useless  counsel there's a there's a related argument that i'm interested i thought you were you were parsing that out in the in the briefing and that was the due process argument that i understand as it relates to the statute but are you making a larger argument that due process in general applies sort of a form of immigration miranda applies in this context is that what you're arguing and could you elaborate on that i would say that in part it does especially when a person is detained like the person that like petitioner was here in secondary and inspection and she was not clearly allowed to leave and she was placed in a position where the officers were questioning her and clearly trying to get information that could be used against her but why should that apply why should these sort of prophylactic rules apply in this context in this specific context i would again go back to the fact that we're not just plainly dealing with somebody who is not a u s citizen but to somebody who is who was or i'm sorry is the legal permanent resident so i think you think that's part of the agreed us except i think it would be part of the egregious why didn't you exhaust then i would say that that we did include that in our goal i looked through and i didn't find it i didn't find it exhausted therefore way before the b i in my reading your honor i would say that we did include that we're going to be address it i don't think the bee i even addressed maybe you can come up and give it stay in the us pursuant to that status we know that in order to meet such requirements you shouldn't she submitted herself for inspection by an immigration officer and our argument is that such inspection constituted  admission which would therefore mean that by the time immigration proceedings were initiated the against her in two thousand and six she had reside in the us as a continuously for well over the seven year period or y if it in fact is so you know that rumor arrows brown that's what we sent out our little our little questionnaire to use to be fair dark about that ramirez the brown came out after the b i had determined this case ramirez to be brown seems to be what the argument you're making they had no ability to really talk about that why should not just send them back and let them think about it rather than make a ruling now they have no time to think about it it have the benefit of the mirrors decision and therefore they ought to be able to give it give it another shot for purposes of the time in which they are granted keep yeah i cannot understand your argument but i can understand also that the st time we really said something about it was in ramirez and that was done after the b i got through in this just didn't know it seemed to me that this was some you had at least a probability but if you have to say i mean it's hard for me to determine whether they have the seven years it's got as much fact in it is it is any other thing as to whether they have the seven years that see if you win on t p s yes well on another note under that same issue i would also see that even if the court i notice that is that's according to your letter you just admitted yesterday but again that seems to me to be something that you could think about since we're really talking about t p s whether a a has anything to do with it no question he's last decisions that you want us to give thought to came after the b i had made this decision well your honor i think that i would say that it's ok and it seems like time is up i would like to reserve the last you'd like reserve you have another question i don't all right my good help up here doesn't have one will turn over the government given to an individual who is in custody your honor is correct that this issue is governed by the summer martinez case there this court held that notification of procedure rights are not required until the formal commencement removal proceedings the court further held in some of the oil martinez for proceedings don't begin until a notice to appear is filed with the court with the immigration courts counsel that goes toward sort of the regulatory argument  the one of the arguments although i don't know if she flushed it out during oral i understood her argument as well being that there are these due process rights that are constitutional rights that have nothing necessarily to do with the regulation that may in fact apply in this context i'm not again i'm not sure the record necessarily reflects the full argument that could be made there but don't you think that there could be this argument made about  exclusionary rule journalling does not apply in immigration proceedings and is carved out two exceptions the st is if there is an instance of a quote agree to this constitutional violation the nd is that if there's been a violation of an agency regulation that was promulgated for the benefit of petitioners and there is a violation of regulation such that there was prejudice for the petitioners protected interests so and on the on that st prong the egregious constitutional violation so again those cases have been primarily in the in the fo rivera which found that racially discriminatory conduct by officers can constitute an egregious constitutional violations as well i'm a district court judge in my day job and i have thrown out confessions when tourney's have not been allowed doesn't it shock the conscience that someone who would be facing this kind of peril would say this shocks the conscience do you think that that would be egregious enough so  i know your honor that due process protections are different in the immigration context versus the criminal context of this issue has not as you recognize been fully briefed on this case so i don't have on hand sort of all of the case i take to give your honor in terms of the differences of due process protections versus immigration context versus criminal context so i think that there is there is certainly a difference there and if the court is interested in flushing out this are going we could definitely submit supplemental briefing  on this issue but i would say for it say for this time that i do know that due process protections are different in the immigration context than in the in the criminal context and as i understand it this was never exhausted the level correct that's correct your honor if i may i'd like to turn to the petitioners eligibility for cancellation of removal i know this court had asked us to be prepared to discuss some some developments on this issue for america yes yes you so the st point i would like to make and emphasize for this court is that the immigration judge in the b i a affirming immigration judge found that the petitioner was ineligible on two separate independent bases the st was lack of seven years of continuous physical presence and the nd was that the petitioner had previously received special real consolation under the car a new car and the board found that both of those were independent bars to eligible for cancellation if i may just argument is that and given that came out after this case was already decided it seems to me that we understand that back and let him think about america's a little bit would you disagree  so the government say your honor that is that while the boards could certainly consider the application over mirrors here that ramirez does not control this this situation here and in fact although in a slightly different context in the matter you're that it then controls her case showing that argument could be made your honor and therefore it so you gotta think about that so that could be the case your honor i can offer some reasons for the court  honor and therefore it seems to me be logical for the b i have a chance that they may gree with you but they may not and otherwise i've got to make their law for them and that someone i guess i'm not supposed to recipient remains removable under the i and a design h e twelve as quote an alien who is present in the united states without being admitted or paroled so although that's a slightly that they weren't addressing that specific this specific instance here in the sosa ventura trigger the stop time rule the government has petition for a hearing on bunk in the lopez case i believe that the responses do in that case anything of the month so it may it may yet be the case that this court reversed its position in the lopez decision but certainly it certainly has the law currently stands that is correct your honor and that's i think goes back to why it's relevant here that there were two grounds on which the board found that the petitioner was ineligible for that seven year olds in a car and a car with that's nine b and in other words i've got to say that one thousand two hundred and twenty nine b c six clearly suggests that these recipients were meant to be excluded from ply if i can't find that in so do i owe the a some deference as to that so my understanding your honor is that this court does not provide deference to unpublished decisions of the board the decision for them probably i ought to send it back to give them a chance to think about that and so we would say your honor that in a car is clear that is cancellation under two hundred and forty eight dollars but before you disagree then that could be an appropriate question for the porch addressing there is not i agree with you i don't think the i provided the sufficient explanation in this decision to say i've made my decision about that so i'm just pressing you a little further if it's clear and i guess the you won the argument if it's not clear and it seems to me that i remind the issues so they can get help that that the that could be inappropriate therefore based on these two two different problems plus the prong that came up in the letter that we just barely got seems to me it would be a good decision to send this back to the eye and think about her marriage as i think about this last stuff that we have still going on in another courtroom of our court plus we have to think about a car so we would argue your honor again as the text in the car is clear in that ramirez need not be extended here but was was the driver presented a birth certificate that she knew did not match the young boy's name or the mother of the young boy's name to the immigration official misrepresented her relationship to the young boy to the immigration official that was never exhausted before the so how do i get it in front of me qualified aliens along them to begin a new their ongoing proceedings without being such i r e stop time rule so i would just reiterate that like the board stated it it