was presented to the jury as a question of fact and i do believe there is a component of that which is a quick question of fact are you residing here permanently after your parent is naturalized i think the cour being in this country from the time he was eight years old continuously through the time his mother was naturalized arguably he he could never make satisfy that element if they were in other words it's not it would be harmless the argument to the contrary correct tree straight your position is if the government's position on the statute is correct you lose yes ok if we don't adopt the government's position and we either adopt your position or potentially some in between position then we would need to evaluate the prosecutorial misconduct claim and see whether or not it was harmless and i take it your position is it wouldn't be harmless no i would disagree with your honor if the court adopts the interpretation of subsection a five that we've put forth and i believe that  see the evidence from the jury show that he fell under the do it all under and b and that means that he would have become a citizen in one thousand nine hundred sixty five or his father was alive or his father had been naturalized to facts that were not addressed by the how which which interpretations that's your right i think by reading through the arguments to the jury it what it reads off wordly because it does seem like the the five simply because he lived here for eight years before that fact as well the government says the answer that question is yes but it's interpretation conflicts with common sense the second clause of the subsection  which requires lawful residence yes then he'd be home free but he wasn't correct so we don't apply that so then you go to the or they're after begins to reside then that it would turn on a point there after means or do you think it turns on something else i agreed that the the focus of this course of ten thousand should be on the words that i don't think they're after begins i think there's a cure for those two words working in concert and that phrase are the key concept that there are usually any around the government takes a very restrictive reading and says that well you cannot begin to reside permanently in this country after your parent is naturalized if you've already been residing there permanently already i think that's too too harsh of a interpretation i think that just because somebody has been doing something for a while clause one because you wouldn't even have to take a child you wouldn't need to be here lawfully under clouds were caught part b around the crimes you wouldn't need to be here last only so why would you even need part section about being here roughly if all you needed to do was be here after naturalization i think the reason for the differences in the two clauses  congress recognizes that he child who had already obtained legal permanent resident status has basically already proved established the intent to stay here permanently and therefore no more is official stamp from the ins to become lawful permanent residents who nevertheless are residing here permanently by their very actions that's true before and i have a very strange way to write strachan it's especially if you trying to mean what you are saying and it seems i mean isn't the better test that begins to reside permanently was was just shorthand for i'm reference to what i had concrete lawful missions f i agree you're on the right i believe that the the the only rational way to look at the statute is when congress chose the words they're after begins expose this thing on the  naturalization permanent residence in the country because that's what it cares about and it may have been put it showed besant better language that it but everybody if you're here when your parent gets naturalized please i haven't thought about whether there's a circumstance i mean whether there's a circumstance where potentially a lawful somebody who's lawfully have been for permanent residence might not necessarily  again at the risk of repeating myself i think that the reason for that is not because the people who are covered by the first clause might not also be covered by the second clause but they're recognizing two different ways that you would actually do your interpretation i think we'd have to say they're after continues to reside that's really what you would ask us to mean begins means continues continues in this case i just think i think that what the key concept in the statute is that the child reside permanently in the united states after the mothers you have two lives either that's a new continuation or a continuing from permanent resident cook and it and i think that i think that one thing that should not be lost sight of is and i know that it's kind of come up in a couple of other cases that have been talked about this morning is we can't ignore that part of the policy behind the statute is wanting to keep parents and children together and and i think that any language that that we are focusing on has to be viewed in the context of that general policy and to read the statute as the government would like but just to say we have a family here who's been living here together continuously for eight years the mother becomes naturalized ordinarily if the sun came out at that time he could come become natural allies and also become a citizen appearing on behalf of the united states may please court i believe the issue that the court is focused in on clearly is one that drives what will happen in this case and that is what the terms of the statu  i agree with the court that the relevance to the court is a difficult position because if it comes down on either side it seems that this either way should not have gone to the jury  what the government or what i presented what the car as this court is aware of considering the entire context of this trial is how we should look to this misconduct allegation and what had happened during closing argument by the defendant presented to an immigration judge he himself would have the burden of presenting it that's important because when i came back in rebuttal argument what i asked the court to be the jury to consider was as the defendant pointed out referring at that moment what it when i made that statement so you are one of the five i as the defendant pointed out he would have the burden at his immigration proceeding you would think the judge would have looked into this what the government was is that if the defendant had presented this when he had the burden the judge would have looked into it i agree that the conditional clause if the defendant had presented that is not in the record but i would like to make clear for this court that that was  repeatedly instructed that the difference between immigration proceedings and this criminal proceeding were substantial that is a clear and convincing evidence vs the proof beyond a reasonable doubt then when this challenge statement was made i attempted to make clear to the jury that that standard that the judge decided this issue under was not the same as the standard and that ours was much higher and then beyond that what that the quote this court held and ameriquest us well didn't hold at least reference to was that in these circumstances where the whole ball of wax is derivative citizenship that is that's what they've been called to do just decide the jury statements such as these would have made the entire proceeding to perfect as if the jury simply thought well despite all of the arguments for the last two days i can simply rely on the i g order and i think to answer your honest question in the context of the trial that is the instructions repeated instruction about the very standards of proof and the idea that the entire trial was devoted to that whether or not the defendant the criteria for derivative citizenship it is not likely that the jury walked away despite the government's an artful argument with the impression that it could simply disagreed with you and we said you know this was it wasn't harmless then it seems to me two things going happen we could say it's not harmless and send it back and then you kind of evacuate started or we could say it's not harmless and here's the interpretation of that shit so let me ask you this if we said it's not harmless what happened here and we don't know how this should have turned out and that's al and we send it back then do we go through the same trial again with the same ambiguous statute and part of the instructions i think i think the judge there has been some subsequent guidance in this case to the the twenty a j letter the recently read that at least under the facts of this case where the defendant was brought here at the early age of eight remains here throughout  his mother's naturalization and beyond that in those circumstances regardless of what we read into there after we're begins assuming that that is not a distinction that needs to be drawn at least five second circuit's opinion that those facts are not enough to satisfy the elements of fourteen thirty two so you would have let the judge would the district judge will make that determination have to make that to trial yes the alternative is again if we were to disagree with you and say well we don't really think this  harmless and here is the interpretation of the statute then what would happen in the event that this court it's my understanding if the court were to make the interpretation that the statute is as the government what would happen would he then basically the government would decide whether to prosecute again and he would have a trial or anything that might happen between the presentation in the trial that's correct and i guess i think you would be