united states versus all  good morning your honors matt larson of the federal defenders for mr balti your honour's as judge noted this is a very very unique case in most cases of nine twenty two g five charges being brought the alien had snuck into this country or overstayed a visa in the us a had entered illegally here however mr balti came back to the united states with his advance parole in hand leaving in good faith that he had authorization to come back upon landing he was told he didn't his authorization had been revoked in his absence and without giving him notice and without the opportunity for him to use ultimately ordered removed right well this all this the behavior that's at issue after he's been ordered removed right as it was he is he legally in the united states at that point he is because he is pro status your honor but as of december two thousand and eight there was a final order removal and the fact that they allowed him out on supervised release how does that now in our current environment that when you are paroled in you are not here legally there's no yes you're not here period i mean you know you're present but somehow we don't acknowledge that you have any right to be here we're just letting you in while we figure out what we're going to do with that's right and how is that different from the situation your client finds himself in that that point goes to a principle argument which is that mr bol not in the country within the meaning of the statute the statutes been construed to require the end to require an entry as a matter of immigration by us right if that's true by the ninth circuit on facts that are rather different than these facts that are not materially different your honor why not in that case the guy comes to the united states with a gun and is basically turned away at the border so he's here and there in the ninth circuit said the statute does not say it's a crime come to the united states with a gun mr ball they did not come to the united states with a gun as far as we know ever he got a gun after he's in the united states after he was ordered removed and that's a rather different situation isn't the point on which the lopez was decided it was a legal point the court said mr lopez is in the united states he's on u s soil right although it's at the border and the question is is that a correct decision and we have to make our own decision about that's right and i think they made a decision the facts that were somewhat compelling in a very different way than these or i think might have led them astray to read in to require an entry under immigration law is the proper reading of the statute to do to require an entry as a safeguard if physical presence is all that is required then the government can bring someone into this country in handcuffs as in the missy this case and if that person later possesses a weapon he's liable well if he later possesses a weapon yes right but it's also it's a save point is that i mean that's not that's a very different thing than he had the gun when they brought him in in handcuffs and he made no voluntary choice to have a gun mr ball to me no it is did congress mean that people in mr ball  situation should be allowed to have that is excuse me please should be allowed to have guns when people who overstated tourist visa should not be allowed to have guns you or i have the choice that congress made that question before us that's an excellent question and it is not at all clear the congress intended this statute to apply to someone like mr bolton mr bolton is not here voluntarily when he landed at j f k she was jailed for two a is that matter whether he's here voluntarily he may could be here for any number of unfortunate circumstances the question is if he is not here legally congress has forbidden him to have a gun and he makes a choice to have a gun there's nothing involuntary about that that's correct so why does the fact that he may have been unable to exit the country entitle him to buy a gun if he has no legal status here if the court let's talk about whether he's here lawfully whether he has status our position is that he has parole status when he was released from custody the only provision of law that authorizes release was the parole regulation and it's well established in the case law that when an individual has parole status he is here lawfully mr holder was allowed to work he has paid taxes to this country has raised his children here he is legally present his presence is not a crime in the community right the government says oh he didn't actually have parole he had this thing called supervised release but if you look at the statute they  that statute by its terms is not applicable to mr baldwin because it only kicks in after the removal period has ended now the removal period in mr ball these case began one year after he was released on parole by its terms the provision they cite does not apply to mr bolton the only provision that does as a matter of law is the parole provision and the case law is clear the cruise miguel case from this court that parole is lawful presence now this is a very this just be clear and this is an interesting point is this is not a case of somebody who arrives at the border and is then told you are paroled into the united states don't count on anything we're still deciding whether to admit you but you are allowed to be here on parole this is a case where he was effectively released on the equivalent of the l but you're saying the government wasn't allowed to do that they made a mistake by saying that because the only thing that would have allowed them to let him out of detention is for a role was he ever told this is parole or was there a status a determination that you can point to that says he is paroled into the country  d i want to make this this point very clear the government says well the ice when they let him out they call it this i sat program that they created and they called they think that it's a supervised release this is a court of law and i says i a law enforcement organization it doesn't matter what label ice uses when they let someone out the only provision of the law that authorized mr in fact required mr bolt is really your sort of arguing they should stop that program no not your honor it was required under the under the regulation we cited eight c f r two one two point five one excuse me e two one it says if a removal order cannot be executed within a reasonable time the alien shall be released on parole there's documentation when he's released saying he's litigating this in the second circuit also we've tried to get him out of the country and we can't we have no idea if we can execute this order or not release him that is the regulation pursuant to which she was released the regulation a site doesn't even come into play until a year and a half later when the removal period ends the thing they're hanging their hat on is a red herring in this case he was released on parole and went awol when he possessed the gun within that year and a half period o later years later he was released on parole and parole status is lawful status and that's why this case is different from all of the cases they cite in the other circuits none of those individuals had parole they had all snuck in illegally or overstayed a visa they did not come in in good faith and then find themselves in this kafkaesque trap that they can't get out of they did not have parole mr does it is the only legal provision by which he could have been had to in fact have been released and because he has that status he is not here lawfully he is your lawfully your arm because parole status is lawful status and because this is an unusual case to say the least and this fact pattern has not really popped up before if there is a question of and it does require a construction in mr body's favor and as we so that has we say that when our brief we don't actually have to resort to lenity because there's an on point regulation the government says all the regulation doesn't apply because the removal order had already been entered but that doesn't make any sense or orders because by the government's reading then a person can be held for ever as long as they are detained before the removal order is issued your honour's it doesn't matter when the removal order is issued whether it becomes whether it comes before or after the person is jailed the point is too long confinement is too long confinement when it is clear that the person's removal order whenever it's entered cannot be executed within reasonable time this regulation requires released on parole and parole is a lawful status the government decided no authority to the contrary what's under that in that scenario what's the status return he went to the consulate tried to get his passport renewed they wouldn't give him a new passport the government held onto it until after it expired if it becomes feasible for him to leave he will leave and he'll be under an order to leave but while he's here well he's already under an order where distinguished conditional parole which is what someone sneaks in and they're caught and they're put in removal proceedings they say ok we'll let you out on bond we'll give you conditional prole this court said that's not really parole that we're talking about that's not formal parole they the argument is he has been paroled into the united states you're right i don't believe that the argument is that he was paroled into the united states i think the parties agree that his grant of advance parole was terminated at the time here right what happens when he's  after you get out of prison your honor it was what the defendant requested it was what ice granted they issued a notification that he was being released on supervised release and we were if you had used the word parole then we'd be having a different discussion your honor ice specifically said that the defendant was being put on supervised release and impose certain obligations consistent with that the district court reviewed the record and friendly document in the record that we can look at that says the exact terms on which he is released if it is in the record  honor is docket number thirty dash to you at thirteen as well as docket thirty five and december two thousand and seven ice determined that the defendant could be released under the intensive leave here and go back to your office would you please provide copies of that but you just don't understand what this status is mr larson says there is no such thing as supervised release that the only concede that that is not a perfect procedural pastrana scase because supervised release generally is granted to individuals ninety days after as in this case a final order of removal has been entered having said that the record is clear and documents it's not procedurally perfect i'm trying to understand just what you're talking about mr larsen says he may be totally wrong but you see you're going to persuade me that he's wrong or let me find out for myself by looking at the regulations and the documents you say it's not through seadrill e perfect what do you mean by that i mean the food that the regulation that was cited by r s upon his release states that the fund in can be released after a ninety day period after something that something didn't exist here but they let him out anyway citing that regulation now are you telling me there is another regulation that they did not cite that authorizes supervised release under the circumstances in which mr ball they found no your honor there is not a separate relation ok so in other words you are telling me that he was released  authorizes under the circumstances here in supervised release ok now so there is a regulation that would authorize the release of someone in mr ball this situation on parole that's what mr larsen says is that wrong yet that is wrong your honor we disagree with that the section that he with the answer you just gave also the answer to my question you know just trying to ask the same question in his usual fashion put more eloquently or more precisely than i did but that your answer just now to his question was the answer you intended for my question your honor i intended to try to get from for my question yes your honor under under eight c f r two twelve point five we do not think that that the appellant would qualify that is a section that applies to individuals who are paroled into the united states the defendant was never paroled into the united states his grant of advance parole was revoked and therefore this does not apply it further to the court but that you do not need to determine whether or not he was released on parole or supervised release under any condition the defendant did not have lawful status here he was subject to a final order of removal and he therefore was unlawfully or illegally in the united states judge fail out based on the record before the court determined that the defendant had been released on supervised release what happens you know we actually encounter this quite often in the immigration dock in the court that somebody is ordered removed and it comes to us you know ten years later on a motion to reopen because the guy still wandering around in the country and he's not wandering around in the country because he escaped the attention of ice he's wandering around because ice is unable to remove ice or wherever is responsible in the department is unable to remove him for reasons like this the country to which he's supposed to go doesn't give him travel documents now is what is that person's status in your view that person is illegally in the united states notwithstanding that the united states lets him be here may let him work apparently that was the case with m found uniformly that a defendant is illegally or unlawfully in the united states even if the removal proceedings are pending even if they have work authorization even if deportation proceedings are stayed if removal proceedings are p do not deal with parole your honor well are there cases about people who are paroled in the more normal circumstances i understand where someone has said well you can wander around here but you're still to come back and once we decide that you're inadmissible you have to arrived he did not have any authority to come into the united states he was clearly unlawfully here a final order of removal was entered and then he was released from custody because the supreme court has determined that we cannot detain an individual indefinitely that does not transform  happens is that he is released from custody in either humanitarian or legal constitutionally required or whatever decision not to keep him in prison he is now not incarcerated he is free to move around but he still has no lawful status that's the position exactly or it does not transform the his lawfulness it being here it does not change his final removal order and merely means that he is released from to and the ultimate question under the criminal statute is whether congress intended to prohibit the possession of firearms by someone in that kind of situation yes your honor someone who the united states has determined cannot lawfully be here when all persons in the circumstance that we've been discussing engaged work lawfully there are cases your honor  saying that the only way they would be allowed to release him is by giving him a particular status and maybe if that's true and they number stood that they wouldn't have let him out the mistake if there is any mistake is they seem to have thought that they could release him under this regulation that was cited which and they cited that as the basis for letting him out apparently that that  does not in fact apply that may be the mistake and you're so and you're saying therefore we should treat him as someone paroled into the country he was he he has been prole because the only authority for letting him out of jail was the par regulation two one two point five each to one but they didn't cite that regulation they cited a different regulation it doesn't matter what they cite your honor why not because it's what the law provides if the only way to let this man out of jail if the only thing we wouldn't then say but the only legal way to let him out is by parole so that must be what they did here they purported to let him out under a different regulation under the wrong regulation but the reason the reason they let him out was they said we have no idea when this case will terminate his removal orders not reasonably foreseeable that we can execute this order we're letting him out and that is what the parole regulation talks about it says when a person finds himself in this kind of limbo where there's no way to get them out the release they get is on parole now the class of people that your honor was alluding to with another question you know the people who perhaps sneak in they're caught they're put into removal proceedings and they get bond in that is not this case those people entered the country and they entered illegally mr ball he was brought into the country by law enforcement at the airport and she is not in a situation that they're in they are awaiting an order he's had an order entered and this regulation says when an order from bill has been entered why does that kind of person get to have a gun is what why would we think that congress meant in this situation that if someone over stays a tourist visa even innocently and purchases a firearm they're committing a crime but someone who's been ordered removed from the country and is only here because the other country won't let him back in is allowed to have a firearm that's the question and congress has not clearly spoken to it i think the presumption in federal law is that possession of a firearm is lawful and congress  carved out exceptions to that presumption right certain classes of people can't possess arms congress hasn't said aliens are categorically barred from presenting arms it's called it's carved out the categories it says people who are on lawfully present and i'm having trouble understanding how someone who has been ordered removed is lawfully present as opposed to present by necessity because in our opening brief of pages twenty to twenty one and elsewhere in our reply we cite the cases where individuals who receive parole status aliens who are on parole status we do have the problem that he wasn't released pursuant to that regulation he was released apparently because the government thought they could release him in a different candor different category their reason for releasing him was incorrect but they're releasing him was required by law it was clear to them and they say this in the paperwork that the government will file they had no idea when they could execute this removal order that regulation says in this case then in that situation the person must be paroled we're not going to hold them indefinitely we can't hold them indefinitely so they get parole the argument is that the only way they could that he could be out and about is under the provisions that you are citing as joe that's right and my my colleague what exactly so i can get the number certainly eight  f r two one two point five feet two one and it's in our briefs ok and the regulation that they cited is what two forty one point one and if the court will indulge me i found some interesting history on that particular regulation when it was promulgated in two thousand the original version and i can cite this in my letter to the court the reference of the federal register when the provision that the government is hanging its had on came into being there was a kind of q and a in the federal reporter it says is this release or an order of supervision one commentator asked whether release of an invisible alien constitutes released on parole pursuant to two one two d five the thing we're relying on or under an order of supervision which is what the government is arguing reference to the parole statute and regulations is correct and will not be the essentially notice of final rule when the regulation of the government is from a federal in the federal register so the agency here is explaining why it's making this rule and it's answering questions and one of the questions was  this thing you know what about people who have been denied entry like are they going to be treated as parolees or not and they're saying in effect people in mr ball these boat are getting parole they are not getting this supervision that the government is trying to argue for and that the government frankly and candidly admits does not apply to this case the regulation that does apply is the parole regulation and parole status is lawful status and if this is this is something that can be changed by legislation but as it stands today mr ball the is not here on lawfully he's been in for over a decade working paying taxes raising his family and he has parole status and again finally this does seem to be a rather challenging area of law and a very unique case i would again invoke the rule lenity if the court is having difficulty the rule of law that he says congress has to talk in words that are clear clear isabel that the kind of conduct is illegal in this very unique case your honor i would say the congress is not clearly said that someone in mr ball argument that happens to accompany that of course and may within a reasonable time say five days after receiving something like that thank you and you'll get us a copy of the document that you were referring to with