yes good morning your honor robber swain for the petitioner mr santana going solace and i intend to reserve at least three minutes for rebuttal in this case the government failed to prove the single ground of relief though the alleged in the notice to appear and because of that this court should reverse the order of remove ability now the government makes three central concessions in its reefing  it under the ground in charge there has to be an actual entry involved of the person being smuggled and that the entry and it is a matter of law when the original transporters ceases to transport the individual the government also concedes that the conviction at issue here is insufficient to show the ground to remove billet and of course that's understandable because as the elements were set out in the plea agreement and the factual basis of the police grammont show that the offense was transportation of individuals who were already present in the united states in the factual basis sets forth that the aiding and abetting was aiding abetting the presence of the individuals r t in the united states so we said your contention that what happened is that after the original smugglers whoever transferred him across dropped them off that well under this court's holding in corollas now the courts lower courts understand that to be the case but at the time this case went on the government routinely charged aiding and abetting yes before corollas yes and in fact in this case the original charge was a transportation offense it was one of these flip flops of the felony in a misdemeanor a felony charge was not bringing in a felony charge was transportation and just this sounds like a collateral challenge on the conviction that there really was a factual basis for this conviction is that i mean did you wave in the plea agreement collateral challenges and if so would cover and argument that it was actually a factual basis under the for the events is probably understood well i don't think that way because we have the actual documents of the  inspection within the united states and so it would be fundamentally unfair to say well you can plead to this offense the elements have nothing to do with bringing someone across the border and and then come back later and say oh yeah sorry we gotcha because now we're saying as a matter of law you did agree to do that but the factual basis pacifically disputes that the cook facts in the complaint dispute that and the hearing before the immigration judge  speculation and this was the rd concession i was going to get to in terms of the government conceding in its brief that there's no facts or evidence to support the immigration judges speculation that mr santana must have been involved in some type of with under the same ground because he was transporting individuals within the united states and in fact internet is water on the facts for stronger because they had a sworn statement from one of the material witnesses that they introduced into evidence that said that they had arranged with the with the petitioner in that case in mexico but despite that it was challenged as insufficient in not caring sufficient weight but even with that direct evidence this court of appeal held that that was insufficient to prove the ground of bringing across the border of course in that case it was it a checkpoint many more miles north of the border but the principle is the same when the transporter seized transport because there's no dispute about the facts of what happened the original transporter took these two individuals to a house about four miles north of the border they were there for some period of time the government didn't prove whether it was hours or days then the individuals were instructed to go to a nearby church and wait for a car to be picked up the way that car was b was driven by mr santana and he was stopped on a on a roving stop several miles later and so this is a case where we  affirmative evidence demonstrably shows that there was no entry and the government has conceded that and so when the court asked me about why my going against the conviction the government's position in its brief is that the conviction doesn't show an entry the government's position in its brief is odd because the factual basis and the elements as set forth in the plea agreement had nothing to do with entry but rather with aiding and abetting and of course that's goes against all the case law that we've cited they haven't cited a single case to suggest when the government fails to prove the single charge or remove ability that the remedy is then to go back and reconsider and try again they the facts and the issue were fully presented before the agency this was the whole argument before the immigration judge for almost a year the petitioner through his attorney said no common procedures in border districts is for the government to charge individuals with a felony and a misdemeanor and the standard agreement a deal is if you quickly plead to the misdemeanor the in this case and so there's nothing that the i mean the court has before the four corners of the record the court can look at it as the government seems to concede there is no actual facts  that show that there was anything related to board the one thing the government points to is the the agent statement in the complaint whereby the agent says that mr cent can santana and sod's admitted to making arrangements to smuggle illegal aliens into the united states but that's wholly untethered to any actual factual assertion it doesn't say what he said when he said it  opposite there's an absolute lack of any evidence whatsoever that he had any what i said was that the immigration judge without st pointing to any fact or piece of evidence speculated prearranged and then when the d n a was chained was that someone who was prearranged as part of the process of entry to do that kind of pickup is covered well no there was no evidence of prearrangement what the only evidence was that the two individuals were taken to a house sometime after that hours or days later they were told to go to the to the church to be picked up so yes the pick up at the church was  pre arranged but that was done right at the moment and had no there's no nexus or tie to the actual entry that could have been days before and if the court doesn't have any other specific ding inspection that inspection necessarily relates to inspection of the border and that was  up and that's true he was the petitioner was apprehended only a few miles north of the border there is a point of entry there were the entry right there and so it is entirely possible that the aliens did in fact el didn't say thank you thank you it seems a little unfair and unusual for the government to change its position the day of oral argument because in its brief at page twenty six it's the government specifically notes that the evidence of conviction is insufficient because it shows the petition addition or aided the aliens presence not their entry that's straight out of their brief  the nd point i want to make is the government claims that there was some concession made by mr santana that was before him while he was in custody before he had counsel the many got counsel in may of tw sixteen all the way through the rest of the proceedings it was denied that was the whole basis for all the litigation and in fact this ties into why remap doesn't make any sense the government knew that this was  agreement and the itu thirteen which makes no reference whatsoever of any entry and there's even a sworn statement of mr santana gonzalez from two thousand and twelve i think the government prison had all the opportunity to present all the evidence it possibly could to try and tie this to an actual entry and finally i would just say that it's it would be fundamentally unfair to do some kind of a rematch and then the government's going to try and say well under caroll it's like the government saying now all of a sudden your conviction is necessarily agronomy move billet a well it's invalid on its face but we would have no remedy were outside the time for hey vs there's no way to set aside that and so it would be fundamentally unfair in those circumstances the government had a full opportunity to litigate all the legal issues all the legal and factual issues were presented before the immigration judge the board in a one person decision references the immigration judge so the court looks through to what happened in front of the immigration judge everything was litigated there it's insufficient evidence the government does not get a nd bite at the apple and for those reasons the