exactly what the same district court did in santo's court arrow just like this court reversed and santos corvair o mr hernandez would ask this court reversed here as well that the government's main argument or at least one of its main arguments on appeal is that this court doesn't need to find the court the district court abused its discretion because you can pick out certain pieces of the court's reasoning that are consistent with the law but i think you'd look at the tally of what the district court said in explaining its reason for denying a prima said no so why isn't that for the courts determination well two reasons your honor first i think primarily this is a tally of the circumstances tests which the district court itself acknowledged so i don't think defense counsel is just a practical matter has to point to every individual thing that supports their cases and at the counsel's burden to make the prima fascia case and the court and the counsel said these jurors are minorities court case also involving about some challenge their trial counsel didn't do the comparative analysis in the batson contest nevertheless the u s supreme court on its own decided to do the comparative analysis because defense counsel even though he hadn't raised it it was in the record and then he can say that supreme court considered it and did the did the analysis i'm asking this court to do the exact same thing and in fact minorities i'm not there's a narrower question how many hispanics were on the jury that was seated later on the judge goes through and says i got this many minorities but he includes among non hispanic men or i believe two or three your honor the record isn't entirely clear but i believe two or three and i do think certainly the fact that some minorities were struck by the government is a good fact for them but that isn't enough to defeat our prima fashion case in fact in cases in cases like your case law i don't think your case will really give you fresh a case on these numbers well not on the numbers alone but we have more the numbers we small can do is point is quite similar all with that's exactly what happened i understand sort of the feeling of unfairness of the district court that we didn't identify more when we had the opportunity but at the same time the point here is to make sure the court considers the totality of the circumstances and i think that's what the supreme court santo score darrow instead of doing it also the first time on appeal i think that flows from the fact that the crux of our argument is that district court didn't apply the right legal standard and so the case should be remanded for court to do the proper analysis under the proper standard but you know all i can say is like roger pointed out it doesn't matter a bit so i you know i think there are more important values here at stake other than simply one of my client was obviously innocent and so obviously guilty or whether is an overwhelming case the most important thing is to or a importan value is to make sure that race is going ation doesn't affect the jury selection process if the court has no further questions of the bats an issue i can discuss the the consent to reply issue the government also didn't prove beyond a reasonable doubt that it had mr hernandez had not did not have the consent to reapply for admission ok can you help me understand what the difference is between says no there's the same thing and in iraq go a cost and we don't say that but we come pretty close to saying it's the same thing so help me understand what the procedure is what the steps are and what the difference is ea those things that i actually started that pfister case your honor i think it it's i think it makes the point actually that the two steps are different when once you've been removed you have to first ask the attorney general or the secretary of homeland security for permission even to start the process of coming back to port is ok and then you're not allowed in this is your deported under thirteen so so you've been denied admission you've been deported and you're not allowed to enter and cation which is weird or unless you're getting on a boat you're you're you're not allowed unless the attorney general so what step i've been deported what steps would i need to take in order to enter the country you'd first need to file with i to twelve which is the request to the attorney general or the really the secretary of homeland security for permission that i an eight to twelve ok and so once you receive that permission you don't you can't come back to the united states adopt what you've met step one and so you move to step two and then you have to go to consular office and ask for a visa to come back to the country  if i filed an application for consent or an so it's an application for consent to apply for a visa and then what do i get from the attorney general's office of i have and in my criterion or the turn in general could or the secretary could simply deny you that initial consent even apply in which case you you also can't come so if i'm granted if i get granted i do twelve and i take that to the consular office know he attempted to get the consent to reply to begin with which sort of makes this case different than most because at that point since he had made an application the question is was it granted it was granted he's innocent it was denied then he's guilty on twenty thirteen and twenty fourteen i guess he was deported again so apparently didn't have consent to be in the country at least we know he definitely don't have consent to be in the united states we haven't met step two and so good morning your honour's may please the court call mcdonald's the united states beginning first with a sufficiency argument there's not one single case that would support the defense's timeless consent view of thirteen twenty six the government at trial produce more than sufficient evidence to establish that the defendant enter the united states without consent they say that the united states put on evidence that this defendant was deported in twenty thirteen and in two thousand and fifteen and based on  special verdict finding from the jury the jury necessarily found that the united states proved this defendant was deported april fifteenth of twenty fifteen but with what he's saying with opposing counsel is anglo the language seems to say is that there's a difference between a consent to reapply for admission and permission to enter that he it wouldn't be enough to have a granted two twelve waiver you'd also have to have issued that he could be in the country without a visa but have gotten consent i guess to reapply is that am i understanding that correctly you are your honor so that's true that if someone has been deported the united states says we're going to we're going to add an additional step for you to be able to come back you can't just go to the consulate you have to first go to the attorney general get his permission then go to the consulate and see if the state department will let you in at that point so thirteen twenty six says that if you've not received if you've not done that first step going to the attorney general first that you can be criminally punished and it and it and it tethers the consent of the attorney general to the most recent deportation so the language from thirteen twenty six says eight and i'm and i'm reading quoting the relevant parts of thirty six any alien quote any alien who has been deported and there after enters the united states unless cation could happen at any time there's nothing that says after his deported and prior to his so so that that's his argument as i understand it correct and so just based on the plain text thirty twenty six so thirty six is broken up into paragraph one which says any alien who one has been deported has been removed etc and the end of paragraph one is and they're after paragraph two or covers the prior to that correct your honor and certainly like a common sense view of this so let's say someone was deported in two thousand in two thousand and received was deported in two thousand and then received permission in two thousand from the attorney general to come to come back  let's say he was deported again in two thousand and one in two thousand and two in two thousand and five in two thousand and six thousand seven the defense theory is that that one consent in two thousand insulates this defendant from any future thirteen twenty six prosecution which i think just leads to an absurd this was at the end twenty thirteen and under thirteen twenty six you have to go first to the attorney general to receive express consent from him to return or you will be subject to criminal penalty the application that defense has alerted the court  was in two thousand and four but he was deported in the united states prove at trial that he was deported in two thousand and thirteen and in two thousand and fifteen and that he did not seek permission from the attorney general he did not do step one after those times and the defendant dispute that he does not dispute that he did not seek consent from the attorney general after twenty thirteen or twenty this is just basically just going to the structure and how the system works and let's assume that he had sought permission timely after the most recent deportation i understand you're saying is not what happened but let's assume that did happen he goes to consular office ask for a visa doesn't get a visa and then comes into the united states improperly because he doesn't have a visa what would you prosecute him under i think we were plus human her age thirteen twenty five illegal illegal entry which can be either a misdemeanor or a felony based on if he had been convicted of a thirty twenty five before so it's your it's your argument that the word thereafter modifies admission was at have shown up in the files that were discussed at the at the trial yes it would have there was a the a file custodian testified and he he had reviewed both the claims database and h s in the immigration databases to check to see if the defendant had applied and further if the attorney general had consented and there was no no evidence that the defendant had had applied or that the attorney general had consented after twenty thirteen they didn't go back to talk two thousand and four to explore what happened with that and all of that all of the test me about two thousand four application occurred in about fifteen lines of trial testimony that was never cross examined by the defense they didn't  they actually didn't cross examine a falcon studion at all they just left that hanging and that wasn't their theory at trial it wasn't a theory at trial and they in fact admitted in closing argument that there was sufficient evidence on whether the defendant had had the consent to enter they told the jury you've been given puzzle piece for which is whether he enter without permission you know he doesn't have permission so you might be asking why are we here and they said well there's no proof of a voluntary entry which was then proved and which is an argument they're not  discovered and the circumstances of him hiding and and all would that would that separately support the jury's verdict yes it would your honor and acosta says exactly that that the defendant's field admissions where he says i don't have papers to be here i don't have permission to be here that that is proof that he entered without consent for the circumstances of his apprehension where he is five miles away from the nearest port of entry in an area where illegals frequently cross shows that he knew he did not have permission to come here he did not enter through a port of entry he knew full well that he acted without consent and the jury certainly could infer that he did not have the consent based on his statements and his actions returning to the bats and claim it's clear that the defendant and not make out a prime aphasia case of discrimination the defendant had to show one of the totality of the relevant facts that there was an inference of discrimination here the defendant had one fact and it was that t minorities were struck it was not to hispanics it was one hispanic and one of unknown ethnicity and this court is clear that those facts that single fact alone is not a priority for a case hernandez herrera stands for that principle vas z lopez stands for that principle and but that was not the only relevant fact of the court's consideration there were six minorities on this jury six and it could have been ten but the defendant himself struck for minorities so this jury could have been ten a ten minority panel for the defense struck for leaving leaving six that included two hispanics on this panel i have not found a single case with a jury composed such that where where racial discrimination has been found are we required to do a comparative analysis i think that that there's i don't think you're required to i think there is case law to suggest that you can do that on the novo review we would say at the first step though that there was no clear air here in the courts finding that there is no prime aphasia case because the case law is clear that this was not a prime aphasia case given given the sole fact that the defendant raised to the court's attention and then the other relevant facts with support did indicate that there were six minorities on this on this jury and could have been ten if it were not for defendant's own strikes  case and then there was a one brief mark at the very end where the court said something that would indicate a slightly wrong standard and we would say that that was not significant to the court's analysis because it's clear here that there was no plan aphasia case that that was made even if the court were to do the comparative analysis it falls well short one of the jurors that was stricken one of the one of the minority jurors that was stricken her cousin was currently right at this moment being prosecuted for bank robbery and her and the cousin's father was also routinely in the criminal justice system and so the i think the defense's attempts to show that these jurors were similar falls flat and lesser any further questions hispanic that's been established the record is unclear i think he was and identified in the record ok i would also direct the court to yates we surely were that this court said quoting a long line of cases that the mere fact that minorities are sat on the cases in which there was never any evidence that the defendant actually made an application the initial application so when there's no evidence at all that the person made an application to begin with certainly feel statements can be enough to prove you never received permission to reapply to begin with but the problem for the government is that being found here without status is consistent with someone who never received a visa but it's also consistent with someone who received permission to get a visa and was denied a visa for whatever reason