thank you very much your honor please of course my name is thomas neuter and i'm standing in for the principal defense attorney in this case who is unavailable today my role was actually supposed to just be immigration law adviser we the standard on this bail appeal i think everybody agrees is a clearly erroneous standard and what we submit is judge swain committed in effect two errors which are clear enough to us to for this court order remain and i think for her to reconsider these aspects the st was related to the immigration aspects at the point where the bail application was being handled before a judge so it was not all that clear to everybody what the status was of the defendant who had a pending asylum application and who and that application which has been submitted to the scholars whether he was here illegally i in proceedings he then has the status of being able to stay here is available to get a work permit after six months which he did get it pending his hearing which is not scheduled and twenty one what's significant is the issue of whether if he is convicted in this case what would happen with the asylum application as we explained his application form direct asylum or probably withholding under the categories of the five kinds of persecution one might  would probably be precluded by the particularly serious crime rule but a cat claim a convention against torture claim would not and it's clear in his regional asylum application that he made out the assertions necessary for a cat claim including governmental nexus in romania  therefore no matter what happens in this criminal case he would still end up being able to seek deferral of removal in the sense the lower standard an issue of  an order of removal as is issued but it is deferred because he can't be sent back to a country to which he might be tortured and the clinton the claim seems actually fairly credible but that would be up to an immigration judge  the the other error that we've mentioned is that just before judge swain issued her opinion the pretrial services office of this district of the southern district changed its position on whether he would be a flight risk or not based on their understanding that the that they were wrong about his immigration  militate against the release on bail but it's it all has to be taken together and weighed together and if it's weighed in properly against the things that in fact might be favorable to him then i would stick  that's an error that simply should just be sent back so that she could consider more fully both the actual immigration situation and how that impacts a risk of flight and also to clarify whether when she stated that he had fled from rumania if she was somehow considering that as being of prior flight when in fact what he was doing this trying to protect his be able to maintain an immigration application even if you lose in this case and get a great deal of time i do a lot of those cases and i i very much appreciate your clarifying that point but my question would be looking at the findings that the district court made i don't see tell me if i'm missing at a point where the judge misperceived the possible consequences of a conviction on his his immigration status did she say convicted he would be he would be precluded from staying in the united states i guess i'm looking for you argue that there's a clearly erroneous factual i never really spelled out how what she thought the immigration status was impacted her decision but that's why we're asking for her remained with the pretrial service is changing please the court my name is sam rothschild i'm an innocent united states attorney in the southern district of new york and i represent the united states in this appeal and in the court below scorching a firm judgment detention order because she did not clearly error by concluding that the government showed by a preponderance of the evidence both that this defendant presents a serious risk of flight and that no combinations of conditions could reasonably assure his appearance under the deferential clear outer standard this court reverses a detention decision only if it has a definite and firm conviction that a mistake has been made and here judge swain made no mistake at all if you properly considered the relevant statutory factors all of which point in the same direction here this defendant poses a serious flight risk and the conditions of release could address that risk  evidence is overwhelming and essentially irrefutable as judge chin noted consists of a t m surveillance footage pictures on the defendant's own phone of the fruits and instrumentalities of a t m skimming notably the defendant has raised no argument against that ground for detention nd the nature and circumstances of the offense counsel in favor of detention the essence of this case is a t m skimming which fundamentally involves identity theft this is a defendant who has no compunction about stealing people's identities him a serious flight risk that no conditions of release could address this defended his time and again demonstrated himself to be a risk taker he would often brazenly participate in both the data capturing phase and the cashing out phase of a single a t m skimming job highlighting his lack of trustworthiness what about the suggestion that the district court misunderstood apprehended the immigration status of the fence yes your honor i don't believe there was any misapprehension here  judge swain acknowledged that his pending asylum applications gave him some species of legal status in this country no one in the government certainly did not argue below that his cat claim would be per se denied if you were convicted of the offenses here although the government represented was that a conviction in this case would likely have some impact on the on the asylum application and would a from from the record as just already pointed out just when i took all of that into account so i don't believe there was there was any misapprehension of the of the immigration status or the consequences of the conviction on the on the asylum applications here this is defend it's part of an a t m skimming organization whose members have used false passports and the government has documented evidence that members of the skimming organization are abroad and at large and until the government has apprehended all of them they're available to help this this defendant flee abroad and the final the final factor that's relevant here is the defend his history and characteristics which also weigh in favor of detention this is a defendant who had a burner phones and has used encrypted communications to evade law enforcement detection he's demonstrated repeatedly reddit repeated ready unless i misheard and i believe that the standard before judge seidlin would be that the government has to show by a preponderance of evidence that the defendant is not a risk of flight because this is not a presumption case i think if i misheard you the my colleagues say otherwise then i apologize  i would just also point out that the government's position is this is such an overwhelming case that it's not a case of which reasonable minds can disagree the judge in florida who had pretty much all the same evidence including some testimony by an agent who came down from new york to testify at the bail hearing found that he could be released on a sort of conditions that chief would  reasonable to ensure his return so while i agree that in some respects this may be a case where it's likely he would lose unlikely that he would get time in prison i don't think that should be enough several aspects that i don't think right i mean you can always ask her to reconsider the standard here is whether she abused her discretion on the what was before her at the time if you think that nobody was aware at that time what  the repercussions might be for asylum or immigration status want to raise it again which i just might make a new motion from that's what i would have done nothing that prevents in front of judge it's true what i fear is that if the court were simply to deny it she may feel that that's kind of law of the case or something that it would be that much harder to overcome as opposed to simply a remained to allow her to reconsider these things or consider