the government continues to relay to get the same cause of action and issue in which a federal court on may sixth two thousand and four held that the government was a stop from calling mr herrera an alien the government did not appeal this may sixth two thousand and four holding which became a final judgment on the merits and the same federal or federal district court confirmed in july of two thousand and four that the government again was collaterally a stop from holding that mr her was an alien let me ask you this i i take your point about the stoppel issue but you're not contending that your client has become a citizen  you well he's there or stopped from polling he's an alien we're asking the court to allow him to file a certificate of citizenship hundred seventy two which is when the affirmative government misconduct occurred but there's a statute specifically asked to be complied with for him to become a citizen are you contending that he says he complied with that in one nine hundred seventy two he requirement and well but yet you say it's not automatic you say he still now has to go through another procedure that you want to do correct so you're not asking this court to say he's a citizen at this time no we're asking j or the way it has no authority to get in and try to determine that somebody is actually a stopped or not and it seems sat what my colleague suggested there which now the court have suggested is that if you want to go through this process in order to have your client determined to be a citizen you've got two ways to do it one is to proceeding or two is to file it to fifty to forty to be perceiving it isn't to try to do something about that in the middle of  these proceedings so i'm wondering why it is you haven't tried the two forty to be perceiving because in the middle of when you're in the middle of immigration proceedings were not allowed to file for those at this time and so you what we could say then you're waiting for us to conclude that because the b i cannot grant citizenship on the time and we've come to the end where the district court sadder well i just haven't got any chance to do abs and now we still have this proceeding going forward you've got a remedy under two stop the government perv from perceiving in front of it now this particular i j try to go through a whole analysis trying to decide whether this equitable stoppel was right or not and there are some cases that would suggest maybe they should've been able to do that but if i follow mused it should seems to me that i just say the b i a doesn't have a chance to deal with this and you have one idea to go forward to forty to be yes or no there there is a difference between the case here and miss on it in astonished they did not find affirmative misconduct in our case they did apply equitable stoppel against the government in other words you're talking about administratively tribunals versus an article three court and correct you just the one doesn't meet the right the administrative court has no ability to apply those principles against an article three court did you dispute that and if so on what basis that's really another proceeding you want to you want to try but for purposes of this proceeding since we can't under our case law we can't really help you you know dodge around with what the i and the i j a said on this issue what what would you want us to do you want to try to send this to a district court fact finding in the first instance and if so on what basis what authority do we have to transfer the citizenship well if you're going under brown i guess psyops some distinguishing marks as a relates to brown there are cases in fact they can have a chance to apply at quotable a stop pole and therefore say that there are parts of equitable stoffel which should not be applied or collateral estoppel should not be applied in this case but that's b i had no right to do anything about it they cannot get involved in trying to grant citizenship one way or another and that you have i think you've already admitted you have adequate authority to go forth and do what you need to do to help your client by their going under to forty two b or hey b s you tried under hey vs that didn't work it seems to me that what we say is be i a go forth do what you have to do because you can't do anything about this you have no authority to act in this otherwise and then this the potential citizen i guess if you will as the rock go under to forty to be incorrect two where he qualified do you have any case law that would allow a court to do what you're asking to be done here that is have enough proton ruling if you will in which they would have been but for the significant error in the immigration proceedings i get the concept i mean that you get that hard work what i'm asking for is there a case that deals with facts like you have here that would application that was filed and at that point they did deny it and it required the mr herrera to return with a lawful permanent resident card and they did not file  they did not inform him that was the whole purpose of the high honor i understand that i understand that argument so the answer to my question is no not at nothing after that application no and yet you know it was a legal permanent resident right correct ok all right do either my colleagues or questioned you we've let you run a little bit on because we've been asking you questions so we thank you for your argument counsel and your if it if you will if you're underwater so to speak on your time out of your argument on your time so let's now hear from the government good morning your honor is may it please the court i'm carl morgan on behalf of the respondent the u s attorney general it's the government's position that you cannot apply the district court's two thousand and four ruling to could reach that conclusion by looking at the mist and its case although the board and the immigration judge didn't decide the case in that manner we in our brief stoppel to grant someone citizenship but that's not what but that's not what's being sought here it's not a matter of asking the court to grant citizenship it's just saying that you can no longer call this person alien that's what's been decided and there's a difference between alien and citizen that's correct however i think in effect it's awfully close not really think of all the advantages of being a citizen that an alien would not have can this alien vote can this alien serve on a jury you know there are many very few and being issued a passport i was going to i was just going to add being a ship passport so i don't think little edges of citizenship couldn't vote anyway probably because of his criminal record that's true  some states but in any event there is a difference between citizenship and being an alien it's not it's not the full benefits of being a citizen so we're not trying to confer citizenship neither was the district court it was simply saying the issue of alien age is been decided well i don't think respectfully that the district court decided the issue of alien a judge i think it's a little bit closer to an  criminal case i don't think there's any dispute from from either side in this case that mr herrera is in fact an alien well that i guess that would be one could argue that but it seems to me that there are some or or a shooter caught or a collateral estoppel problems was with making that determination i i my question is given what your given what the b i did given what the i j did do i have to return this case to them because it seems to me that if i go  or that kind of approach that they took a different approach do i need to return that to them to make this decision i don't think you do your honor because it has been have been allowed under the under the regulations and so therefore i'm determining that based on some if you will factor that would could be appropriate i'm not going to do it here which i don't know i don't think that that is something we would agree with with miss stanek i think he's got outside of where he needs to go so do i have to send this back to him i don't think he did i think that would probably amount to something akin to harmless error because the result is the same what would you have us do i would have you simply deny the petition for review in this case and if that happened then word or does that leave the petitioner from your perspective as i understand it and perhaps you could confirm but i believe he's back in mexico he asked the court to lift t stay and removeable and his rights whether you know with an alien or whatever those are separate issues of the not he could proceed even if you were in mexico to try to clarify his could so from the government's perspective you're still resisting this concept that he is not an alien even though that's not citizenship in the in the full sense of the word i think the miss standish case comes pretty close in that case they said that the government could not be a stopped from denying that he was a citizen and here it's the government cannot be estopped from asserting that he's an alien i think who are seeking status as many similarities to citizenship without giving full citizenship does it not i mean for example the president has proposed a regulation out the matter of some dispute but the reality is it confers if it becomes effective a lot of the characteristics that are enjoyed by citizens but they're not citizens and this is a government program is there any difference in the in the sense that if the petition here is allowed to have certain rights that are somewhat like citizenship that does not make him a citizen you agree i guess i agree with the general concept but here i think congress has specifically provided that persons in his position that have been convicted of aggravated felonies are to be removed and that unfortunate but i'm sure that's what you say that that's if he's an alien but that's what has already been decided and that's where that's where our dispute is if it's already been decided that he's not an alien he was a lawful permanent resident there was this mistake and so he can't be an alien at this point you want to you want to sort of undo that and say we find he's an alien therefore removeable so we have a circular problem he was once an l p r right yes right ok and the district court in his other case said not an alien because of the mistake years ago but i it said one that the government was a stop from asserting he was an alien within the criminal proceeding and two it refused to apply it refused to take us back to russia to cut you say within the criminal proceeding as if it's limited to that and as if that holding has no effect in later proceedings i don't know where that idea comes from and it has no effect in a building there's plenty of of case law that would say when there's a difference in the burden of proof between criminal and civil proceedings they lateralus stoppel doesn't apply wasn't that the issue we asked you to address in a separate order whether the v i i and the i j a can apply those equitable exceptions and the case chang vs united states we held  immigration judge cannot hear the sort of claims that issue here which include whether equitable relief is available so they if they can't apply the exceptions then to stop a little apply if they can't apply the equitable exceptions that you rely on name w different standard of proof i'm not sure that the difference in the burdens of proof is really an equitable exception i think it's just an exception to collateral estoppel but it doesn't apply another was the case of present by which is a seventeen i n n december case of nineteen eighty and both of those they were allowed or the ins suggested that decision wasn't a criminal proceeding it was a de naturalization proceeding and so the burden of proof was the same in paris via as i recall i believe that case did have to do with a criminal proceeding but the board found that because of the differences and burden of proof that it wasn't going to apply collateral estoppel if i'm remembering the case correctly you're on so how does that how do they weigh in to your argument to make today federal collateral estoppel is possible to apply across different types of proceedings but only when you have the same burden of proof and under peres via a it's inappropriate to apply principles of collateral estoppel where you have those differences and in burden of proof if there could be a potential outcome where you could imagine that someone in the district court proceeding the government might fail to meet the higher burden that's a political in the criminal proceeding and yet be successful in the civil proceeding then it's unfair to apply those equitable principles to either watch for the question we