that kind of completely undercut the visa waiver program if everybody can just come in and check out much like you do on anything you check off yes yes no yes yes and then you can say well now i want to have a europe to america much like we go to you know london for a week we want don't have to go through all these elaborate visa programs and we said we want to do something are lying go and you're trying to completely undercut that with this  the government can explain but don't build your whole argument on what may turn out to be false hypothesis but what i'm trying to say those words between a general the court said to determine whether a waiver was to knowingly or bond hurley you have to review the  superseded by the the online application right but that's what i said so there's a discrepancy about what they relied upon remember the court has to review the clarity of this waiver there's not one before the court well is there even a but he gets fingerprinted he gets a morion it tells him to prison greatest fear for the last forty years is now coming true and he just sits there by the television set per year i mean this strikes me as very much putting him on  and that would seem to spur you to a lawyer or a police or something maybe you don't know everything i understand that but if a random person with no education gives a rested they realize that's a problem and if they you so you say that section that the basis of your motion to reopen a said it was filed within thirty days of his being informed about the what the and three point five right what is here i understand you have several arguments by why one of the three dollars allegedly applies here but you have a single case under the visa all the practical arguments you want to but it's up to congress and the attorney general to pass a law that says you have a visa waiver program and then to implement that with regulations and what if one of the three point five it seemed as as somebody i guess the government argued taken in the whole context of the surrounding regulations it applies to the denial of benefits reg immigration it didn't even think that there would be anything to reopen because anybody who filed the forms on voluntary waiver program submitted in saw for herself to automatic deportation without any further notice except for a claim of asylum nd intelligently precisely because there's so many misstatements of facts here you're mean rd the government the government approved ten for the visa waiver program which means that they me just ask you this because this is a little bit off the direct topic but is the problem here that his most recent mission was under the visa waiver program rather than if he didn't you know arrest him proceeding and then that's because sometimes people here overstay their visas not on a visa waiver program as he did originally the student visas and then twenty years later they're arrested for speeding and discovering they're here and then they're put in removal process but that's the whole ok so is his knowing the way very different than the average person sitting there in britain wanting to come here for a week of fun and realising that they want to stay because he's waiting a lot more know what he was saying yes to someone how do we know what he was saying yes to i can tell you exactly what it says i have it written down is not a record so but that's what i'm saying why isn't it in the record why didn't you submit that it's something we can take  suppose he if he was presented with a notice of intent to deport and it says you misrepresented on the i seventy nine dollars money says what the heck is that well this was actually covered in a case of one of her sister circuits that the knowing involuntary is judged by what they were told don't we need to know what they were told no you are and this is where the seven service decision and bail comes in because the notice factors that get into the issue of knowing involuntary is something the court previously or at least he didn't leave when he was supposed to previously and he probably was not and that's what he's saying anyway and he would have been hand both good chance that he's never caught which is certainly possible turned away at the border and that's where the prejudice increases because you to and i bravely if you are looking at this he's already in scotland i agree there's no prejudice is not playing a silent and all of that but he's looking at it from when he filled out the form which was here in the united states when he's here and he's not been found for forty years nobody has come after him and probably never would hand neverland and and if they did regulatory authority that allows him the problem was real and what he settled on is the section one of three five but as joe johns has already pointed out their argument is easily rejected once you look at the actual regulations in fact if you look at the specific so than the waiver language wasn't there and it just clicked yes exaggerate ever having seen in there some evidence of that let's suppose that and now we have the same proceedings we have here how would he raised well what do you need a mechanism for him to that we will i mean frankly you know you're calling it's a motion to reopen but it's really a motion for a declaration you know for an exit inquiry in the st sentence you're not trying to reopen anything except the merits but  violation here but it seems to me the whole nature of this program is to say to presume that the people who are getting these waivers know what they're doing and that they are subject to immediate removal agreed to waive procedures going out i think about that right as he had no constitutional right to be in the united states today and if were an alien in england today who wanted to come visit the united state he once said he would not be allowed in unless he either had a regular visa or went through this but isn't that then every yeah this is the way i mean the visa waiver program is not intended for people that are in the us and go on a trip to scotland it's meant for people in scotland who want to go on a trip to different i mean if he was in scotland and just wanted to come visit the us he would have been happily waving whatever because you know you're not trying to stay and when i go visit europe i'm not trying to stay there more than a week or two that i'm on my trip so i don't care about any of this stuff the problem that you have is what he's really waving is staying in the united states all those forty years and having whatever rights he might have had to bring whatever proceedings or to respond to proceedings brought against him with better