hartzler federal defenders on behalf of mr bravo rosa mr brothers conviction should be reversed for two reasons first mr brothers underline removal order is invalid because the court's recent decision  this record judge he was very careful in going each after each one of those elements as to the discretionary exercise withdraw of the application do we review that determination for abuse of discretion or the no i think that's an excellent question your honor i think it's a question that i'm not sure this court has answered and it's it's made more difficult by the fact that we're not really sure whether it's the district court that's making the discretionary decision or whether it's the district court saying this is what an immigration agent would  immigration officer to that would activate the immigration of his discretion to allow him to withdraw his application for admission right i'm not actually i would disagree with that slightly your honor because i think  plausibility only comes in honor of you possibility of not the evidence he would have to present to an immigration officer it's how we review whether it is likely or not that an immigration agent would have granted it that may be a flight distinction from what you're someone who had lived in the united states for a long time someone who had multiple united states citizen children someone who had not committed fraud someone who had shown statistics would show another case there's just simply no meaningful distinction between withdrawal and here the senate has entered over twenty times so three times as many times isn't right about that so why does that make the district court's decision on prejudices unsound i mean why isn't that alone enough to kick this out over a bucket because it's not enough because i think the issue is would the difference between six times and twenty plus times have taken it from plausible to not possible and i think the reason it wouldn't is because we know that over twenty occasions mr bravo was not put extra removal proceedings he was allowed to return so what is it that makes it plausible on the twenty third time and not possible in the twenty fourth time there's nothing and that's why in the absence of some other extreme difference between these two cases there's nothing between write a book and bravo that makes that that factor and nothing to fall below the what the claiming that he was not told that in the extra removal proceeding he was subject to removal yet and that's a depressive violation that we don't believe the court needs to reach here because we don't believe the district court reached it below but we believe that even if just decide the due process issue if for some reason we want to reach it i mean as i understand it one of his complaints is he wasn't in the eyes of the possibility of withdrawing his application but he has no right to that under our president has no the issue that agent valdez should not have been allowed to testify and recall then there's the issue that the district court mysen struck to the jury on the issue of official restraint and third there's the issue that the prosecutor's comments were improper because the prosecutor said that he was hiding in that brush because he was a convicted felon and by doing so the prosecutor essentially took the facts of mr bruff a felony and used it for purposes far outside of the scope of impeachment which the only reason that it was allowed about the last word where you stand correctly the during closing argument defense counsel made a number of objections during the argument that but not not to this one this was objected to after the argument was concluded it was a lot of testify despite the rule being just my understanding of the rule is that the district judge has discretion to make exceptions and to permit it when he or she thinks justice requires it why was it in the piece of discretion here because first of all the district court granted the motion saying that the witnesses will be excluded now at that point if if for instance i didn't do it my question clear of obviously the witnesses were excluded but the judge can say even though you should have been excluded but you weren't excluded i have the discretion to permit you to testify anyway because justice requires it why was that in a piece of discretion well because the court has said that it's a very very high standard if for instance you have  a situation where someone is supposed to be excluded and they're not for purposes of for instance harmless error the court has said that there is a very high standard that must be met to show that this did not somehow prejudice the jury is the jury i'm sorry so that this didn't become and be an issue what is the issue and i'm not following what you know i do trials all the time i don't understand what the prejudice is from having a witness  accidently gets through and it was an accident because it wasn't until supported he was going to be called back right this was a surprise development so what is the problem with the fact that he heard a couple hours of testimony i mean why is that such was a reversible error because  remand when he came back and recall he tailored his testimony to mr brothers testimony one of the things that he specifically said is that when he first testified he said i apprehended mr bravo at six pm right at sundown then when he testified on recall he said the senate gone down about an hour before now the reason that that's relevant is because one of the big issues was did the cameras see mr bravo if it was light out the cameras could see mr bravo if it wasn't light out when the cameras could so in other words that would drive drunk it's a fine closing argument to impeach a witness you know that's a fine closing argument to impeach the witness that he was inconsistent so what's the process i saw him get what the problem is with having him he heard a few hours of testimony and then he was unexpectedly called back to the stand i mean i just i'm not seeing how that causes this to be thrown out on that basis well you also i think it's very important to look at the fact that because he was allowed to come back he was allowed to leave the jury with the last evidence that the jury heard is aged valdis repeating his testimony i didn't find i found him in a brush and this whole case came down to an issue of credibility between a basically what happened was agent valdez was allowed to testify twice and he was allowed to testify again after mr bravo testified right before the jury went in and you're complaining about the fact that he said three testimonies recalled what you're describing now sounds like a different issue which is he should have been allowed to testify for second or third time your only issue is he stayed in the courtroom and i just you can move on but i'm just not sold on the idea that simply being in the courtroom for a few extra hours necessarily made impossible for the jury to reach a verdict i'm sure that we should throw this verdict out i'm not going to made it impossible i'm saying that prejudice mister bravo because basically it gave the government a significant advantage but i will move on to the issue of i would like to move on to the issue if the prosecutors for an argument now the fact of mr bravos prior felony was admitted for the purposes only of impeachment and then during the prosecutor's rebuttal argument the prosecutor stated mr bravo was hiding in that brush because he was a convicted felon that's far outside of the scope of what is allowed for impeachment purposes you're using it for motive you're basically saying he's a bad guy he's been convicted in the past you should convict him again and frankly i just don't see how that's not fair and it was during the rebuttal argument so we had no way of going back and unlike as the government has stated the judge the judge the district court had had instructed the jury prior to closing arguments so there was no instruction to cure this was specifically talking about how the objection to this was made the argument was but that time it's too late to instruct them anymore i guess you could prepare your back but you didn't ask for that because we objected and the district court said first of all the district court didn't even sustain the objection and then the district court said it's preserved so i'm not i think it would have been futile even if we had less we would have been nice if the of the objection were made when he said the statement the judge could say disregard the statement aright you know i admonish you can take that into account whatever the judge would say i don't care if you don't get around to objecting to it until after they're deliberating there's not much the judge can do about it i agree in an ideal world it means little a put a pop up after the jury's gone back to the jury room and say oh i have the following ten objections to closing argument i mean well that the how to how the supposed to be workable all the more reason that that should have been allowed in the first place and frankly you know we have checked it multiple times earlier none of our objections were sustained obviously it would have been ideal if we had objected right only ideal i mean it's required isn't it is required i think this even if the court finds that it's error and we believe that it was harmless error i'm sorry we believe that it should be judged under harmless error standard but even if the court finds playing this is about it as plain as it gets frankly i don't see any way that this was used for impeachment and if with the court how this case and how mr bravo rose this is unique factual circumstances are quite different from the circumstances in ray of aka and i'll highlight two of the factors from the immigration field manual that w particularly important to the district court and let me start before i do that let me answer judge bay as question that i believe the district court's findings of fact in her careful analysis of the discretionary decision here are reviewed for clear air i think that's and clear from the camacho lopez case that's again reiterated in the array of aki case i think he's finding it's a fact a review for clear air and the district court found these twenty four apprehensions were a significant and controlling factor in this case mr or probably wrote this had a history of making illegal re entry into the united states this was over a ten year period very different from correct in making that factual finding that that fact alone you know is a major factor and showing how this relief here was not plausible the judge was unable to compare this case to three o it whatever you want to do but re evaluate it in light of remark i think remain and is not necessary in this case because of those clear findings of fact that the district court made and i think what the way that the panel addressed ray of aka is you know there's a clear difference here and this court can make that distinction at the appellate level because the facts here are undisputed mr prothero says has these twenty four prior apprehension over a ten year period this is someone who is a frequent flyer in the immigration contact that's not plausible that at this late juncture when the decision has been made to place mr brown r s s feeds into the same argument was made the right is not going to run along because it  clear about the nature and i think there is a little bit of confusion those twenty four prior removals were not removals that started as mr prothero says was placed into formal removal proceeding so i think it's inaccurate to say that he was given the relief that he sought here which is withdrawing his application for admission that only occurred that circumstance were only of occur once mr a problem arose as was placed in a formal proceeding these prior removals indicate that the immigration service had not made that decision yet the place mr bravo vosa into these formal perceiving so i don't think you can take that discretionary decision from the immigration service whether or not to pursue the immigration the formal immigration proceedings year as evidence that once the proceedings have commenced once the immigration service has decided that twenty four entries is too much and if you go through his sworn statement on s t r eighty four you can see circumstance once the decisions and made to place and in the removal proceedings it's not possible that the immigration service would have exercise that discretion and it would really have anybody was course you did have that case on the books yet but i mean is there court in this case applied for aa alvarado and that's kind of the critical case here and applying all of those factors the same analysis that the cord utilizing ray of aka your bra the court there said decisions about other wins and perhaps they would have gotten removal if there's no evidence to show why this specific alien or these classes of aliens would get removed would get relief is of no consequence this is a discretionary decision of course the united states we can see categorical bar for the defendant being offered this relief but judge opposed to know what's what's plausible and what isn't so what this what this court has instructed starting two thousand and eleven with examining the factors in the immigration field manual go and in favor of the government i think your honor that is an unduly limited reading of for us certainly it is accurate to say that in for us there was a question of fraudulent documents that is not the case here but that is to elevate one sentence in the immigration field lternative concern that the field manual annual has addressed the six factors in the immigration field manual the judge in this case i think similarly in bras alvarado and in rate of aka found that five of the six factors way against the defendant only the only factor here that cuts in his favor has there been no previous findings of inadmissibility against mr prothero so i think in any way this court can analyze it if the government is able to show that relief is not indicated by five out of six factors i think the immigration service is i think it's accurate to say that that relief was not possible and i want to talk about brown number four the ability to overcome easily overcome the groundedness ability i think we need to be entirely accurate here about another distinguishing factor with ray of aka ray of aka had a us citizen spouse and us citizen parents i think the court in re evocate indicated those would be spouse who live in the united states is also a mexican citizen and does not have any sadness to be here his children can only put titian from mr brock to a chain legal permanent resident status and once they turn twenty one there's no  eighteen months or eighteen years we don't know that that's right around and there's no evidence in the record before that and i think certainly it isn't that another reason we ought to remain to let the judge make those you know findings i don't i don't think the defenses you know i mean you've just told us that he's got older you know she's got younger children but you really don't know if they are well there's certainly no indication that they are over twenty one so they're certainly not in a position right now to position for m so certainly i don't know if it really makes a factual difference whether they're eighteen years old or they're ten years old i mean at the time in two thousand and eleven and they were not over the age of twenty one they were not able to petition for their father to receive any kind of status i wonder if i could ask you about the prosecutor's closing argument certainly your honor and let me let me start by addressing our office has reviewed this argument particularly the six hundred nine reference and i would submit to the court that at this point united states believes that reference was improper on the other hand even though that this one limited phrase and the prosecutor's rebuttal closing argument was improper i would submit that it's not reversible  and i think you have to start with what is the standard of review here and i think this court has indicated this was a defense counsel who had no problem objecting multiple times during the original closing argument and the rebuttal closing mary and if you examine the record of how those closing arguments are conducted the district court routinely in response to the objections would remind the jury that the statements of counsel are not evidence and that their understanding of the evidence will control that you know counsel statements or not and so there is a curative function that the district court could have exercised if the defense counsel had timely objected to the statement looks at let's agree the defense counsel was asleep at the switch did and didn't object while the jury was still in the box and could have been could have been admonished by the judge they hadn't reached their verdict that's right they're still or any reason they could have been brought back into the courtroom no your hon or but i think again and i think this would go to any potential prejudice that fence offers i don't know if the defense at this point would have wanted to bring even more attention to this statement i think that's a tactical choice that perhaps they would not have elected to at that point court's question about that i think is entirely instructive about what was the purpose of that phrase and you cannot examine that phrase in isolation you have to examine that phrase in the entire context of the rebuttal argument and we reproduce that  paragraph perceiving that statement and they should clearly show this the defense is right there's a credibility contest between the apprehending agent agent valdez and the defendant who took the stand and was properly impeached with that felony conviction the prosecutor when through all of the improbability in the defendant's statement about what he testified to underwrite about how he spotted a border patrol truck with a camp what he believed was a camera on it over three miles from his location proceeded to climb over the border climb over the fence and then wait patiently for that border patrol truck to arrive the testimony from agent valdez underactive and the testimony in rebuttal is entirely  disagrees with all of those promises and so i think it's entirely proper for the prosecutor to make that comparison who which which of the story is more credible which does that's enough to state with that she's complaining about that that's right but it's necessary to understand that contact and the overall context i'll get right to the point is the prosecutor is in essence saying the defendant's felony conviction is yet another reason why his statement his story about how you attempted to enter the united states is not credible that's a shorthand way to do that and you can understand from the nature of the proceeding two paragraphs how that need perfectly how is that made perfectly clear to the jury so while that phrase was in it in artful they should not have said because because i think that unduly leads to some other potential suggestion it's cured by the fact that there was this is playing error standard of review here the objection was untimely and viewed in the entire context of the closing argument it's clear what the prosecutor was arguing there's no dispute here this was in fact as the defense said a credibility contest it's entirely proper to mention all of the factors that they that come to bear on credibility and let me turn first second to the sea quest ration argument and i think this court has hit on some of the essential points here that this is a review for abuse of discretion there was an inadvertent violation of the few questions that's clear from the record that there was no bad faith on behalf of the government and in fact the parties with the exception of the defense counsel were unaware that this witness was in the courtroom during the defendant's testimony the reason that the district court properly exercised its discretion in allowing this brief rebuttal testimony is the district court went through the process of examining number one there was no bad faith in the government from this witness inadvertently remaining in the courtroom after being properly excused that the government proffered a very limited basis of the testimony of the proposed rebuttal testimony and then the district court allowed the defense to cross examine valdez about these issues all you so the defense lawyers knew the agent was in the tent in the courtroom and didn't see anything until he was called up again that you're on the record showed that it was only the defense counsel who indicated that and i can turn exactly that record site it's on page one twenty five of the record that agent valdez was in the courtroom the entire time i don't think there's any  prior cases dealing with these issues indicate that the timeliness of the objection is critical because that's when the district court could have cured any potential issue that the defense had to allow the defense to step back and you know at the district court indicated during another passenger record this seemed to be a true while by ambush the defense theory was not even made aware of the government until a sidebar during the defendant's testimony so this is a a trial that appeared to proceed by way of an ambush and i would suggest your honor the record shows that that's perhaps another motivation of the defense here in failing to timely object when they first notice the witness in the courtroom if that's the case and that's what they're  the government's trying to shift the burden to us we had no burden whatsoever to try to say that agent valdez should not be in the courtroom and the reason is we knew we were going to recall him and so at that point agent valdez had a sixth amendment right to be in the courtroom like everyone else so because we weren't going to recall him we had no legal basis to object to him being in the courtroom whatsoever i'd also just like to read a quote from united states v l and this goes to the issue of prejudice on the  order the standards the government have to meet is that is very high because prejudice is presumed and a reversal is required and less it is manifestly clear from the record that the error was harmless in other words this fall on the government to prove it's harmless they haven't done that i'd like to move on to just correct the government statement in regards to rise aka versus the case here and in terms of whether there was a possibility of getting legal status in the future now the government actually i think misstates really no difference no meaningful distinction in terms of the ability to get legal status in the future between right of aka and mr bravo also like to go back to the issue of prejudice on closing argument we absolutely would have asked the judge to come bring the jury back out and i think they would of we would have but didn't we did not well at that point our objection was overruled i mean we objected we said well whatever i mean you didn't say to the judge judge we object and you should please bring it back and admonish i mean i don't know what you would have maybe of me in the would of the next time this happens but i mean in this case there was never any request for any of that well i think we also go to the issue of would it have been futile i mean that the