all right thanks very much mr cain you know and why don't we go ahead and it started here we were ready to call in making that argument based on new legal consequences you see attached to the decision to go to trial the guilty verdict but but just to be clear you're not arguing it's retroactive because of new consequences on his original conduct right that would be foreclosed by fernand as marcus right your honor our primary argument that is correct that the new judge becker you know said well we really don't have to say anything about this but then he said something about and said we don't understand how somebody who doesn't have an offer in front of them could have any reliance interest whatsoever so was her plea offer made here or would argue even if there were not any plea offers extended the decision making about whether to go to trial which occurred create dba before the statute that was critical to the analysis or our will then what then  to what purposes judge becker's language important pool where he says he deliberately goes out of his way to divide the set of people who go to trial into two categories henri's those who had a plea opportunity and those who didn't and he says us to those who didn't we have we can't conceive of any reliance interested could put forward your honor that was certainly data that's been called into question by the corps in act in sin by the rd circuit nevertheless that reliance requirement is no longer part of the law that was prior law before martellus from the us supreme court before acting soon before a nd circuit in kill that actual reliance is not part of the retroactivity analysis of mangrove or pool is said that true but i mean that's not something new judge becker came right out and was emphatic about that but what i hear you circuit decision in two thousand and six you'll see that that's reflected but we don't think that should be required we think it's clear after ak enson from the rd circuit and after telus from the u s supreme court that rejection of a plea agreement is not a requirement but the retroactivity analysis there there can be reasonable reliance and that's not looking at a particular petitioner at a particular alley and that's looking at the class of allianz that could have been affected by this statute that's a factor that the courts can consider but it's not dispositive it's not required if you're relying so heavily on a consensus what do you make of the language that the important event to which you're a attached a new legal consequence was the conviction your honor that's because in the back in things akhenaten case the conviction occurred at the same time there was no distinction between the the trial and the can conviction so i repeat that he that's correct the trial in the plea both happened prior to the change of law so there is no reason to consider whether it's the plea or the trial for the conviction date in our case for the st time this narrow issue of when the trial occurs before the statute but through no fault of the ele and the sentencing occurs after the the your suggestion that a bit earlier events besides the conviction could be controlling doesn't make sense because the the individual involved alien is not even considered removable until there's a conviction that renders him remove that that it's you're making a nonsense argument because what you're saying is somebody who's not removable has the benefit of these events when indeed they don't become removable until conviction so conviction has to be the operative state what's wrong with that argument or your honor for telling us from the u s supreme court ha it's not just the conviction date in that case the court recognized that it could be defense the plea or the conviction date that we're all retroactively looked at applied by the statute in a negative way so it not just the conviction date moreover st cyr looked at that same argument from the government which was if with a plea context as opposed to a trial context but the lodge it's the same the government was arguing we're not applying anything retroactively we're just waiting until the conviction comes and that's when the statute in that case ira ira kicked in however st cyr said rejected that saying that's not helpful government it said it proceeded to examine the commonsense functional retroactivity analysis and the fact that there is a clear difference for the purposes of the retroactivity analysis between facing possible deportation before the statute arrived and his verdict at the end of february ninety six dollars at that point it was the possibility of two hundred and twelve c fast forward two months later when the people statute isn't acted after that there's no possibility of waiver of deportation so that where in line with saints years holding that that's a distinction that matters your honor in addition it's important to note that the deeper statute doesn't use the word conviction unlike ira ira that focused on conviction well the retroactivity analysis has to look at how that particular l e n or anyone in that the class about alan would be affected by the statute so mr eventually east or anyone in his position in february active government and agency we contend that that disqualifies him while what is it that is qualified him certainly with his decision making to go to trial and losing the verdict that's when he committed the offense under the a deeper statute that's definition of conviction that we know from perez applies retroactively to say we're just looking at the time of conviction and what statute was in place at that time doctor the supreme court in st cyr said the presumption against the retroactivity retroactive legislation is deeply rooted in our jurisprudence and embodies a legal doctrine centuries older than the republic elementary considerations of fairness dictates that individuals should have an opportunity to know what the law is and to conform their conduct accordingly settled expectations should not be lightly disrupted for that reason the principle that the legal effect conduct should ordinarily be assessed under the law that existed when the conduct took place as timeless and universal human appeal was the conduct that we're talking about your honors if you did the commission of a crime or the decision to go to trial at which time he it was a guilty verdict in february ninety six before any of the statues came into effect so what's the conduct that you're looking at the mr eventually stood to potentially change based on knowledge of what the law is or what the law would be in the future it's no this is not the conviction here your point if i understand it correctly your point is present matter a bit because you're willing to go ahead and say that the retroactive  f effect of the definition in a rear of what a conviction is is immaterial here because talks in terms of commission and not conviction and therefore who cares who cares when the conviction happened my understanding you're right you are that's one argument that's true looking at the particular language of the statute but in addition well let me stop you are you acknowledging that the definition of conviction applies to mr vance released it's correct that the definition of ira ira applies retroactively that's been decided however it's never been determined whether that definition would apply to somebody who went to trial and received the guilty verdict before a deep before i or ira says it isn't that settled by press and i guess i'm wondering why you're arguing the point i thought your position was it doesn't matter forget it because we're not talking about conviction st cyr tells us it's stuff that happens before conviction that matters and if it matters for people who are taking a plea a matter is just as much right that early on was not convicted until after ira ira so it was the repeal of ira ira not doubt that you know you because oh so if we accept that the arc of argument that i laid out which i understand to be making do we ever get to your constitutional arguments your honor we don't need to get to the equal protection arguments if the court decides it based on that arc of argument that's correct your honor there's a separate equal protection argument where you're right we wrote we've read your briefing and we actually are we're just a little past your the ten minutes you've reserved five minutes for yourself judge maybe or judge kraus or anything else you want to rely on in the pre ed world of deciding how to challenge of challenges crimes in other words one of the specific reliance interests that that you're claiming was at stake at that  that an aggravated felony like the tax crime that mr bentley used to was convicted of that that could i disqualify you from getting a waiver of deportation so there's not an argument an actual reliance that being said he did turn the nd question was you were talking about the word commission and of what what do you what do you define ed if you ask me what you find commission to mean if not conviction what would be the definition under the statute that you would offer as guidance for the determination of the ordinary meaning of that work well certainly a trial definite a trial verdict deciding that beyond a reasonable doubt he committed a crime february ninety six that establishes that he committed the crime so for our purposes a trial would be sufficient i would leave it to other galleons to argue that when they did the underlying crime that was the commission but for our purposes your honor certainly that favor a ninety it now because that's that's a case where it looks pretty clearly like the court is saying sincere said this for applause you know that it it's not a conviction it's the decision to plead that matters and we that goes just as much for people who decide not to plead but to go to trial why why doesn't that argument that they're making here and which seems to be supported by point to sort of say ok that's it for the government they these guys had a chance to plead they chose not to point to says that's the operative think to look at not the conviction what's wrong with that argument the problem is that that ignores what st cyr was actually looking at the state of the law how how do you get around that well because saints ever lied on reliance and we can't ignore what saint's yours actual holding was which was that when we played there's  and i created lot of you got it you got to deal with the law the way it exists put a pool expressly rejects that it is not it is not in any way unclear expressly rejects t quid pro quo argument that had been accepted by other circuits i mean it's it's absolutely clear it says we understand there are other circuits who did this differently we don't see it that way so given that we're bound by our own precedent what do we pointed out we have no control and that is not only became clear that we reject quid pro quo but also nixon clear we do not require actual reliance which the supreme court has now a when there's a difference between saying a possibility of reliance because we did that's the standard we embrace component cool and it seems to be the standard embracement supreme court and they're saying you know they'll speak for themselves but they're saying absolutely we've shown a reasonable possibility that he was relying on the state of the law we don't have to show actual reliance we can show and we have shown that people could go to trial reject the plea believe that they are going to be able to take their chances and still have a shot at two hundred and twelve c relief later and then two hundred and twelve c relief disappears that i understand is their argument they say that's all they have to formulation in favor of a reasonable reliance formulation in the retroactively elsa's i think that to mean you don't have to show actually it's you do not have to do that you can say it would have been reasonable to rely found guilty by the jury what how does that in any way did you rely on just merely being found guilty by the jury not being convicted to be eligible for to see waiver because you need a conviction of course to be eligible because we would even be here if there was no conviction now if it had simply convicted the crime we would not be standing here because petition would still be a lawful permanent resident all right i don't want to but the problem is you still have to do something to show reasonable reliance why would going to trial deciding i'm going to roll the dice saying can be going to trial and say well i went to trial binding precedent tells us that is not a valid basis on which to make a decision we can't we we we can't go there well a quid pro quo it's not like we don't consider but it goes to to two were going to be treated the same way the law you're suggesting has changed in that regard well you are the left has changed obviously over the course of the twenty four years since congress attempted to get rid of to twelve  so we wouldn't be standing here either if if there were some unusual decision making at the o j that and a guy who's about eighty years old with  wife he's the taking care of who's desperately ill and who has all his connections in the united states for the last sixty years should be thrown out of the country it's an unusual exercise of decision making on the part of the  that's that's neither here nor there what what what is significant is that we're still struggling with you i'm still struggling at least with your argument that somehow sense here doesn't really speak to versus bar and an argument at page eleven of that brief that this discussion about commission versus conviction is really has light shed on it by this recent supreme court case that shows up in the reply brief we can you does or something you want to say in response to that do you agree that barton versus barr has something to say here about this distinction you're drawing between commission and conviction well i appreciate and we do appreciate the sympathies in the case but we do unfortunately simply have to proceed to head the legal issue yeah and that's that's what we're doing puzzling is that is  can doing simply being committed can it in the crime he did not commit the crime nala sudden cease to be an l p r the operative thing that touch any legal consequence too is a conviction or not been convicted nothing here what we beast i mean really if all you're doing is reviewing the grounds or move building it's a nd circle was removing the ground zero of the building and only done was committed the crime not by convicted we wouldn't be here because there's no possible way for a distributed in your view it purports to apply to him with that reading but it's a different question whether congress intended it to be retroactive and overcome the presumption against retroactivity so isn't the question for us cyr if you had pled guilty under st cyr you'd be your argument would have no force at all right well it to finish your honor because that we would just your you wouldn't have any argument to make about this because he would fall make the argument you're making now because he would be covered by st cyr right you would be so are you mad about conviction because st cyr takes it off the table doesn't it now it's a completely different issue there's no need to talk about pleading that in one instance retroactivity issues would arise and in the other they don't that's your that's got to be your legal argument right because it still won't let you make any other argument well same theory again still requires that count the corps recognize that they don't really makes that the exact analysis does not apply no the thing is because the analysis has changed over time so the exact analysis of this and i mean if i remember correctly  for counsel if i could just start thanks so much counsel i want to make sure i followed your argument and i think you did your answer can be brief if you like government would contend that this isn't a retroactivity case at of that doesn't come into effect until after mr eventually is convicted then there's no reason to figure out how this was applied earlier steps in the case because all we're talking about is a conviction so we need not get into  aircraft or anything else because this is a matter of simply interpret is that essentially what you've argued that there is a distinct clarity from ad and careful sense that there is only one operative thing that a congress attach any legal consequence to as a concept as use of language and all in consequence that congress has any consequence to as a conviction petitioner really want to be something else but again we don't care we simply are an interested as litigating here that he committed a crime all that matters is that a federal judge sentenced him for the conspiracy to commit tax evasion two million dollars that's the concern here is a conviction and it's the statutory language at issue that it's we have to look to the date of conviction and nothing else for retroactivity purposes and because it says deportable by reason of having committed any criminal offense and that can only mean the entry of taken the position must mean conviction when he pleads not guilty means something different when he pleads guilty it's not that i mean it's different it's just that the retroactivity analysis of st cyr doesn't apply if you didn't plead guilty apply the deadline against petitioner it chose not to apply the deadline it's not that's being waived it's the agency chose not to apply here so there's no discussion of it because the board didn't apply that line against petitioner so you know it's not just demonstrate that it qualifies for any exception to the time and number fram requirements imposed on motions to reopen removal proceedings and responded filing in question the entire basis for his argument and not overcoming to deny it as untimely such that something would mean that is precisely they went on to address it and you've not made any argument in your briefing or in here that this case should be government's main contention that this is not being applied retroactively the conviction date is what matters your honor that misses the point of land graph and st cyr and looking at the effect of a statute on an individual and what that individual's expectations have it correct what with the statutory maximum that mr eventually say if convicted on the charges that were brought to trial it was longer than five years i don't know if it was ten or twenty my guess is it was probably twenty or so so soon as i understood your argument then mr eventually still reasonable reliance was that he believed he would not receive the sentence that was that  had to have at least in his mind that whilst it's possible i can't take advantage of two hundred and twelve c if i'm convicted and i get a sentence above five years i just don't think that's going to happen and that's what i understood you to be saying his reasonable wants one i think your honor his of five years right i understood the i a e a to say that if if he was convicted of one or more aggravated felonies and has served for such felonies a term of at least five years he's not eligible for to trial set so that i understood you to be say why i know that that's a possibility but i don't believe that's going to happen at sentencing and so i'm going to go to trial but the government to its burden of proof if i'm convicted i'm going to make sentencing arguments for something less than the statutory maximum and once all of that kicks in i will still be able to take advantage of to twelve feet because i'm not going to be eligible for a term of imprisonment over five your honor respectfully i don't think that's correct because activation charge was not even an aggravated felony in february of ninety six dollars and us can become covered by and put into april of ninety six dollars long after his trial so at that point in february of ninety six dollars is reasonable reliance is that he can go to trial even if you analysis they said it reflects the practical reality of noncitizens we're facing a choice between pleading and going to trial for dispended to exercise his right to trial it might have been rational to do so if he knew that a conviction for the top charge meant basement w leave some opportunity to seek relief in immigration court however if that same defendant knew he would have no option for seeking relief if convicted on the top charge the indictment he might have chosen to negotiate a plea agreement rather than risk exile from his friends and family  exactly that mr evangelist was in the court has already recognized the equities here which you get analyzed when looking at the change of law certainly to equities weigh heavily in favor of mr who's been taking care of his sick wife he's been in a country for sixty years he has five children twelve grandchildren all u s citizens his wife is a u s citizen his whole life is established here send him back to italy is that covert your honor if recovering from that to italy at this point would make no sense in iran i think it's important to report you know if you can you stop for just a moment because i want to make sure i understand the point that you just responded to to judge maybe judge maybe has put it to you that even pre if you had a conviction that gave you a sentence of greater than five years for tax evasion you were guilty of aggravated felony i think that was the premise of the question you're saying and correct if i'm wrong about that the judge maybe will will straight me conference or here i don't know but if that is the promise of the question are you taking it aggravated felony at the time at that point he would still be proceeding to trial with the possibility that you twelve c would be available to him his verdict would it would change the put ability of gil right because analysis and go you just quoted was about somebody who said look even at the top even if i get hit at the top i still have an option and if if the trust me is positive discredit what wasn't the case for m ok the other thing that i would add for the court to know is that this is not a decision that would open the floodgates to many any and it could only apply to people who proceeded to trial so before april ninety six who then were not sentenced until after ed that that would straddle that trial date and that would be a very limited number of people if any besides mr eventually stood twenty five years later now who are still in the country to pay it agency is looking to remove ok