intent to violate the law and was a child he was brought by his parents we're not talking about a callous criminal alien who insists on violating the law because he feels he can do it and we're talking about someone who was brought here as a child and who the government in its own writings has acknowledged has no criminal record whatsoever the only thing i think we i think we know all the facts in terms of and then when it all started again he was eighteen so he and and then he has several times right after when he's eighteen that he tries to get back in because he's trying to get to a stat or whatever as far as that goes and the most important point there is why was he trying to get back to trying to get back his family because the government put him outside unlawfully he's on a bus not traveling north to los angeles he's traveling within the city of city of san diego area in the county he's going to visit his girlfriend who's now was wife border patrol agents board the b the bus is half full there's a sea of white faces he's the only hispanic in the bus who they pick on to pick on him to question him they ask him about his papers he says as honestly he answers my father petition for me so what do they do they take him off the bus take him to their station hold him for hours in a dirty cell and coerce him into agreeing to voluntary departure because i mean let's get to that because i'm not particularly moved by your fourth amendment claim so i think that the a fifth amendment claims are better appeal based on insufficient evidence or misconduct by the t h s officials are we even able to reach the merits of his argument that removal orders should be did suppressed or are we prohibited under twice by the border patrol and let's say if we agree with you then i think that the correct result in this case is pursuant to your decision some doubt of the ashcroft where the court said that the correct remedies the place t petitioner in his original pre arrest status and that's really what we're asking for we're not asking for initially for relief under or bone or any of those other  government violated his rights and put him in a position where he is now possibly barred from any relief and i couldn't help but listening to the comments in the in the prior case and similar to the situation in the prior case that you just heard mr because this did make a claim to citizenship in trying to reenter the united states he only made that claim to citizenship because the government put him in that position by throwing him outside the country without any opportunity to prepare for them well i'm i know that you i know that you're relying on site although diaz but there's a difference in the posture of the case and that's why i'm not sure removal orders i mean you're essentially looking to come up with you know go where no court has exactly ever gone yet and applied the exclusionary role on these due process violations and the government arrested him and didn't believe he was in proceedings and took him outside so when he tried to come back in that position was a little bit different regarding this was not in proceedings and the government has argued well some got o why didn't you put him in pursuit and let him spend the charges if any charges that you might have been able to bring against him and say i guess i read the case as it could possibly support the argument that a removal order itself could be subject to the exclusionary rule but i don't read it as specifically so holding i'm not understanding your question well i don't think that i don't think that i think so gather d s suggest that possibly the exclusionary rule could apply here but i don't think it specifically holds that and so in that instance i think i don't think so ga though diaz just necessarily gives it isn't exactly on point  could decide that in the first instance the passed on it when they simply did not do anything about it just like the judge passed on it by simply saying without taking any testimony from anyone by the way simply saying that he case then why shouldn't they be the ones in the first instance to decide whether the exclusionary rule applies in this sort of situation well that that was actually what we were trying to accomplish when we went before the immigration judge position he was in before the egregious violations that second motion the events that now potentially render him permanently barred because things that he did to come back into the united states claim to u s citizenship charge there is no waiver of that there's a waiver of fraud there's a waiver misrepresentation but the misrepresentation section has two parts to it and the second one is the more specific which says false claim to because my client's father is a permanent resident that petition is a very lengthy wait so he could not actually take the step to adjust status until that petition became current and he did just that as i'm sorry  did try to adjust status later after he returned through his u s citizen wife taking advantage of the two forty five i allege ability that his father has that was for him in one thousand nine hundred five which by the way government counsel says doesn't count but i would point to a five to forty five point ten for that for the grandfather improve provision and in addition i would point out that he filed through his wife on march twenty one two thousand and one which is before the april thirty two thousand one deadline the other thing is that government counsel has argued that he has not provided proof that there is an approved petition well there is a petition page three eighty six of the record has the actual filing date of march twenty one two thousand and one that united states in this case a permanent resident that he has a biological relationship a family relationship with the beneficiary and that the petitioner wishes to qualify this person as an immigrant as soon as that is filed he preserved what is called to forty five benefits thank you  we did argue prejudice and the prejudice that we argued was eight that he could have he challenge the the whole removed from the united states so he could have very well brought in motion ases in abeyance until they can be resolved precisely because of recent petition is available and because if the case goes forward there will be some very drastic harm to this person such as the application of section two t voluntary departure itself there's a huge difference between grabbing one thousand year old and throwing him out of the country with the clothes on his back and whatever pocket change he has when he was going to visit his girlfriend then to go before an immigration judge get a period of voluntary departure of one hundred  twenty days during which his family could have made arrangements for him to remain in mexico with relatives they could have given him some money some kind of structure so that he doesn't just get thrown out into the street and say geez now what do i do  that the only way to come back is to go to the border and try to sneak in but let me ask you this if assuming that the three removal orders in question are not factored into the adjustment of status equation would your client other be eligible to adjust are you saying if you were put back into the position that he was in to remove all orders were not factored in if the three removal orders were not factored in the only problem that he would have is the false claims of citizenship were ok well that being the don't matter he the any any misrepresentation any fraud can be waived there is no issue of bad moral character except that perhaps reentry after deportation can be found to be a lack of good moral character he has a  respondent the petitioner back in the position he was in before the government's incorrect kind of yours i'd like to reserve some time gives the police officers of the border patrol the right to question anybody any good either in general you're correct with border patrol or other police the police of officers don't have the right to just felt that there was no proper reason for him to be singled out so i don't believe that makes out a primacy case let me take you back to where you were starting in terms of price you said why the court doesn't have to get to certain issues regardless  orders were the product of his own independent actions which broke the chain of linking those actions to the original removal or to part voluntary departure as as a fruit so there's no way hypothetically let's say i agree with you that he has been trying to print a face a case for the fourth amendment but i don't agree with you on the fifth in terms of that because he you know giving him all inferences in favor of what he established in terms of the same age the conditions of the celtic time period that he wasn't given an opportunity to voluntary departure there were heard there administrative occultists closure and other issues let's say if i agree that he should have had a hearing on that from your perspective what what with the remedy on that well the remedy would be to go to go back and give him that hearing to determine if he w of those problems and so he's not going to be able to prevail but what appellants counsel as i argue it is as i understand his argument is saying that based on the as though  that the other things need to be suppressed and what i was questioning him about was i was saying while i don't think that case exactly stands for that i don't i don't find anywhere that says that there is an exclusionary role if if i were to agree with you that that should be something that could be i needs to decide in the first instance or whether they're going to have a b i a role when they are if they were to find a due process violation what's your position on that i mean he obviously wants to wrap it up he wants to wrap it up all here and be back you know get rid of everything but you're saying there's no penetration case and anything he can't win anyway because he came back all of that but a fruit of the original removal or voluntary the police or any i don't find any case out there that exactly stands for the freedom of choice in a strain on contact in immigration cases is there he's not characterizing them as independent as you are in the sense that he's saying he's an eighteen year old he's stuck there with you know that that it's a little bit so those facts have not been really ferret out that's your position if that's still her back and he says she says here yeah i'm not sure i would agree that it's a factual issue i think it's a legal issue we all agree on the facts in terms not not interims of the the voluntary departure but everything after that we agree on what happened and he regardless of his age he was eighteen he wasn't a minor he was and he then he repeatedly violated the immigration laws by repeatedly reentering or trying to reenter the country treatment his arrest and so forth he could have waited in mexico for his father's visa petition to go through the process are sought admissions for any other reasons so there were there were legal that means for him to get back into the country or the contest his treatment at that time instead of pursuing any of those legal remedies he took it upon himself to illegally enter the u s on repeated occasions  do we expect of a person like dan we expect them to speak sophisticated legally yes it does anyone entering the united states to know the laws and needs to be familiar with them now i think you know he is eighteen that's true but i think you probably have some people here that have had eighteen year olds that aren't living on their own and aren't self supporting and so i don't know that we say that an eighteen year olds the same as a thirty year old i mean legally you know but i think that's what's getting our stomachs don't you know i mean you can argue that all of those things are really available but it it is a little bit different when someone do without taking the law into his own hands and illegally entering the country he had to expedited removal orders entered against him in one thousand nine hundred eight both of those orders specifically tell him you can't come back to the country want the first ones and within five years other ones and within twenty years we have written documents also and then he again tried to reenter the country in two thousand and one by that time he was twenty one and already had multiple encounters which would have educated him i would assume the immigration authorities so i don't think i can say he continued to maintain this sort of innocence that there is that he's claiming that that caused him to at least initially try to reenter the united states it should be remanded under ventura to the back to the agency for them to hold hearings on those issues because those hearings were never held on those issues because i j determined that he didn't need to reach them because there was there's no evidence in the record that i was thirty was actually ever filed with it was then i and it's now well might have been anyway with department of homeland security and i don't know  of that is hard for me to find out without getting at the receipt notice which is not in the records so there's no evidence that was ever filed and we don't know what it statuses and without approval of these the petition he wouldn't be eligible for adjust i said i just found it wasn't relevant because if he's found the removal orders cannot be suppressed based on the original voluntary departure and so he did not have a hearing on that issue we do not have the facts in the record  whether racial profiling improper racial profiling actually occurs thank you very much for you so i think we have your arguments and i thank you for your argument thank you are so fast to the racial profiling issue he did not specifically say why he was singled out he did say he was singled out it begs the question why does a border patrol officer clear the case that your honor was referring to there's two of them one is britney ponce that is that happened at the checkpoint over by sacramento and the result of that case was supreme court said that for an officer for an immigration officer to first of all it's separate the checkpoints which are the functional equivalent of the border from roving patrols and the case status is that roving patrols are not permissible as as in fishing expeditions but they are allowed to patrol the areas but for all the united states and if they make an arrest they have to justify it with articulable reasons  essentially the issue is whether there was a prime efficient showing at the right and so we have the declaration to look at and from there right and i would also point out that mr lee got to this presented himself in court and was ready and willing to testify in support of that affidavit and expand it to whatever length it had to be i don't think that the law requires that the affidavit be a two hundred fifty page treatise on exactly what happened it's only established and it was an independent reason to to remove him the court found that the government was trying to bootstrap a claim and that it could not take advantage of its own wrongdoing to insulate the misconduct from being reviewed the court also found events that mr got to this family to that he committed were committed precisely because the government expelled him illegally having not expelled them this young man would never have been in mexico would never have attempted to cross the border saying he was a u s citizen and by the way the way it occurred is a little bit different he was expelled within hours he was back at the border trying to get back again scared he was caught right then he was expelled again well his terms of your honor talked about his level of sophistication his father's a farmer as i recall these are not the most sophisticated most educated people in the world yes they did seek counsel they knew enough to go and file a petition on his behalf and