good morning may please the court my name is donna gray on assistant federal public defender and i represent the petitioner county let a lot to i would first like to indicate that one of the issues raised by mr lott too in his brief was the issue of the commerce clause and that case has been decided one of the related cases which is noted in our brief is united states versus comstock this court has already ruled in concept on the commerce clause issue following its prior precedent in honna therefore i will not address that issue ok i will begin with what i believe is the primary issue and that is whether or not mr lott to at the time he possess the weapon was lawfully in the united states that is in the united states with the authorization of the attorney general or in this case homeland security are our position is that he was illegally or unlawfully in the united states is not defined in the statute the common sense meaning of a given by dictionary is whether you are without authorization in this case the fact indicate as does i think one circuit precedent that given the fact that mr locke his wife had filed an i one thirty that was accepted by the immigration service and approved her husband then filed a prize for you know it mostly because it is twined especially in bravo screens with the court's decision on whether or not the district court's jury instruction properly inform the court in that jury instruction reliance on garcia the district court said that the alien an illegal alien with a filed for filed an adjustment status correct and at the time he is determined to be in possession of a weapon the reason has expired the application for adjustment of status has been filed but not yet ruled upon correct your honor and is there about that application for the adjustment and that is that when the wife's i thirty protection is accepted and the alien files the i forty five the immigration service or in this case homeland security issues a alien registration number two the alien that number along with the receipt for the i forty five application and pending petition is then stamped into the passport of the alien the alien is also given a for mission or a card in which they are allowed to work in the united states but i believe the fact position is the fact that the service goes so far as to put a authorization type documents right into the aliens passport for that alien to use is if not and if he can manage to slap an application somehow he's nominee you're a b c r he's never been made an immigrant yet but your position as congress is somehow left a hole because the common sense reading of it i was a congress obviously meant the person still a legal we're just not going to be we're just like me so harshly we're going to grab and throw him in prison or throw him out of the country while this application is pen we're not going to do that but we could we can still file removal proceedings and he could be removed actually with an application pending could he not yes he could your honor and that's true of any alien in this country that holds a green card they can be deported he could be removed even the application is pending he could be removed he was here illegally before he can still be removed from being here illegally but there's an application pending grant your honor and there's no removal from the sense to tell me congress didn't mean that at all they thought he was still here illegally but we're a nice nation and so we're not going to throw him in prison right away and we're not going to make him starve on the streets and we're not going to from our country when he comes t process that would become incensed to within not necessarily runner because congress the congress after all also passed these laws that allow aliens to adjust their status and when the and when they gave them that right to adjust status they also gave them the ability to remain in the united states to work and to have certain rights the reality is that i don't believe that the fact that he could be removed is of much import when any i mean let there be a basis for removal against him once the honest faced plausible application for adjustment of status based on marriage to an american citizen has been filed could the united states remove him without other indication of the illegality if he commits a crime and so on here sort of assuming that he sort of keeps his nose clean and the only thing that he's done that's quite bad is that he's overstayed his nonimmigrant visa but because he's filed this application for justice there is based on marriage to an american citizen he has received an alien a number on a stamp on his passport and so on what if the h s said you know what we want this guy out of here and they seek to move proceedings against him do they have the right to get removal  i would think that they would have the right to do it under the removal due process procedures they would have to come up with a reason under the removal statute well that would at subjected him to remove well what i'm asking is the mere fact of having overstayed the non would you go to the trouble in the us in the i forty five application process of granting this person the ability to work providing them with information in their passport about the fact that they have an adjustment of status pending it certainly would make any sense and it would seem to i don't know about the practice but i'm asking so in a sense a different question is whether congress whether congress is given to the d h as even the legal ability to do it i frankly don't know the answer to that your honor ok counsel we have to create a circu implied if not outright stated that once in an individual has filed a valid i forty five petition received permission from the united states to work and has certain things put in its passport that person is here with the authority of the attorney general if we assume that those rulings i would your answer change no your honor it wouldn't why not because i don't think that even if it's dicta it can be  oriana which says you take a common sense meaning of the word illegal in a law which means you have authorization to be in the to be where you are therefore you are legally where you are and i think it's not your time but it sounds as if your start removal proceedings against this individual there's a lot to despite the fact that he filed this application for adjustment of status so the bottom line is yes and your basis for move all was under the basis for removal is that at the person still here now this man is going to be a hypothetical question assume that mr lateral or someone in his position except for what we're not talking about he's committed no crime they're saying there isn't that ground for a move ability simply understanding you have cases to say that i mean what is right in the statute and i think it's that i don't think the statute says if you file an application is somehow changes your status what the statute says that once you overstay your visa you're on  lawfully in the united states the statute doesn't say if you go ahead and file the application there's no there's no law that says that if you go and file the application your status that's changed as you read it and what we have years of practice  it would make no sense for the government to seek removal proceedings against every person who files an application to change that's true because the vast majority of them are going to be granted so why would you spend the money to expand i understand why the practice exists let me ask you a different question file based upon marriage and he says may i legally possess a firearm what's your advice absolutely not and he says legally educated as he is not what he says  three thirty four but you say clearly not and but clearly not meaning clearly i'm going to disregard a very clear statement of the contrary and i'm struck at how can you possibly say clearly not you could say well there's language in the ninth circuit that goes that says you're absolutely entitled to it which applied those two statutes which said and alien who applies for a change of status under either of those statutes they cannot be deported pending resolution other application that's what the law existed back in the one nine hundred eighty s under those two statutes and that's when garcia was side then you had the court decision and bravo the district court decision reading garcia without understanding that it was limited only to the state of the law at the time law that changes the status merely by filing the application so here i was asking me is there a provision of the law or the regulation that says the mere filing that the application changes your status the answer is no right now and in those other specifically say whether it's an agricultural worker in the home but if it's not an essay w case i mean that really is different because actually the other cases you're absolutely right there's a later i just want a status that's automatic but if you're not under the later program that was in one thousand and two thousand i believe also the life program you cannot be deported pending the application process but mr watson did not qualify under either of those programs so his application i did so if if you let me suggest that if he was not an agricultural worker then garcia is clearly wrong in my case because well if you say garcia is clearly wrong if it's not agriculture work then that means we've got to go  that the government seems to place on it for this reason first there's no question that once you're out of status and your non immigrant visa has expired you're deportable under the statute you're removable under the statu his petition and he was given an alien number he then he came in this country with the authority of the attorney are you saying he was no longer removable at that point i'm not saying he was no longer removable how could he be removeable i think that it's true that an alien in his status can be removed they are generally are not removeable with how can he be removeable on what grounds that he was here illegally i think he could not be removed removed on that ground your honor because that would sort of know we're all we're all no imprisonable unless we do something wrong if you want to and that's and that's a common sense thing your honor and why shouldn't that alien be accorded that common sense understanding of the way the law works it all depends on have far more seventy one point in latin and i don't for this reason i think that only applies to illions that have overstayed their visas and not necessarily to aliens that have filed a valid i forty five adjustment of status that clearly applies to ilen