morning good morning your honor and made it please the court i'm gary rowe from the office of the federal public defender for mr sevan i aspire to reserve two minutes of time for rebuttal with a mic and well i'd be isn't that the end of it the answer to that question judge kleinfeld is because the waiver was not considered intelligent z is a problem for me because he was represented by counsel it's not as though motion for immediate removal so if an attorney prepare a stock and is represented by counsel then it seems like then the immigration judge just to deny that and then say but yeah you got to come in here and i got a i got to remind you of your right to appeal yes your honor we have a couple of problems with the waiver in this case however one is it wasn't signed by the client it's not clear who know what you stand up in court in your lawyer  tells the judge that you're conceding something ordinarily there's nothing sign well usually for example in the context of a guilty plea it has to be knowing voluntary and how this is in a guilty plea in a criminal case but the same people concede remove ability and get on the bus because it's better to get on the bus and go to mexico than it is to go to jail different boss and much more pleasant to be in mexico and attorney attorney prepared nation one time if i could move i don't want to get to wally because i only have six minutes and we do have another issue that i wanted to address that relates to us supreme court case that came down oh yeah there were a few she was quite interesting yes so if i could just turn to that but if you have any more to say about the waiver this is your chance yes the  didn't we don't know who mr specter is in that there are no records in mr issa specter's office of him having represented mr a seven s we don't have any records that he went over the waiver with him so we seem to have an attorney who waived even though there were perfectly good grounds for preventing immediate removal or those sparks from the record that you just recited about the yes that he was not drugged and carried across the line the status elements of section one thousand three hundred and twenty secs not a citizen but an alien a prior deportation attorney general permission did not matter did not carry mens rea because this is a general not a specific intent case firearm and the other was i think that was having been convicted of a felony it was their right to know it was being an immigrant in the country all that's unlawfully that's right and lawful immigrant and what the supreme court pointed out is plenty of people possess a firearm and it's perfectly legal probably some of the justices did i don't know that we have a constitutional right to do that we likewise have a constitutional right not a constitutional right but we have a right to come into the country the only thing that makes it illegal is if we've been barred from coming into the country so what you're saying is that's an yes your honor i think that you could turn it around by saying coming into the country is an innocent act it's only well i guess i see you're ready for him with their let me let for the for the act of coming into the country we have a statute it doesn't use the word knowing willfully any kind of minnesota word or precedence is if you don't know you're coming into the u s because you're asleep in the back seat you are innocent of the crime yes and behave says that's not good enough you have to have mens rea st status elements like being an undocumented person in itself i don't think it says that there probably doesn't it does it does your honor it says that whenever congress it says that if congress is silent then we presume men three and that it applies for every element absent an express indication by congress to the that the government does not have to prove that the defendant knew he'd been previously deported and for the many reasons we explain our brief that person is not clearly irreconcilable with a hey why or why or what why doesn't that destroy the what brings that conduct over the wind into criminal behavior is that if you have that status you or your family are in the country illegally so the court noted that that status is the crucial element separating anything conduct on wrongful conduct for that reason that the defendant needs that knowledge of that status and one thousand three hundred and twenty six if someone's been deported and then they are outside of the country there's no constitutional right for an alien to reenter the kind let me let me give you a hypothetical suppose a five year old child was removed because he had no right to be here its parents brought him here snuck a man or maybe somebody else said using the five year old childless a decore we get drug smuggling cases like that   to obtain such advanced consent the five year old probably don't even know that he was denied admission and removed and that's what makes it a crime how do you distinguish rafe there well your honor and  is the same hypothetical the defendant poses in his reply brief for a child to is brought across the border as an infant or some of these five year old that child is almost certainly not subject to prosecution at one thousand three hundred and twenty six dollars because they've not voluntarily reentered the country and that is an intent requirement it's not a status crime it's not a strict liability crime you have to have that intent a voluntary into the country and if you're a child to your parent it's forcing you to cross the border who has told you to cross the border you're not voluntarily going to the country so in that sense it's different from i would guess that the child in that case would have been removed without a criminal prosecution because you just want to get back to his mom or xanth or something like that in mexico but you're saying that but i'm hearing you say that the child couldn't be prosecuted because it wasn't a voluntary entry that would be the lacking yes stronger and he wouldn't have to be prosecuted all he needs here is to have been removed in terms of to be but to be prosecuted again upon entering you know the subsequent prosecution rightly subsequent prosecution when he's twenty three he knows perfectly well he's entering the united states prejudiced doesn't know that he's got this five year old it's you don't have a constitutional right to cross the border if you're an alien crossing the border need to make sure you have permission and if you cross when it turns out you don't have permission that's not innocent conduct because you have and the burden is on you to determine that  you do in fact have the right to enter the country so that the kids were to say hey mom you remember that time you sent me when i was a little boy of four or five years old to visit my aunt and uncle in arizona was it all legal honor it's not a so his burden to dive into his past but if he's going to reenter the country he does have to figure out that he's has a reason he has the right to be in the country is going to have to get a visa is going to find some other way to determine he's he has a right to be in the country and during that process  he's going to find out he doesn't have status or he's just not going to try at all and that case he's either going to be refused at the border is going to enter the border in some other way and as in many of these cases we see that the defendants end up violating a u s c one thousand three hundred and twenty five which prohibits entering without inspection or misrepresenting yourself to beauregard because that's really the only way they're going to get into the country because they don't have a right to be in the country and in that way crossing international border with without the authorization is just not the same as doing something like  position your honor i believe the only facts in the record representation is that the attorney for the attorney did not have a record of the prior representation i don't think there's any dispute that he did in fact represent the defendant if you look at the  three and thirty eight he says that this defendant retain this is her knee he hired this attorney and i don't think there's any sort of evidence in the record that suggest what anything else that happened there was a representation other than that we should presume that he represent cases where the defendant challenged his way we're going to greece in court and those cases he submitted a decoration with the defendant said i didn't understand my waiver and this court found that meaningful and relied upon that declaration to conclude that the way was invalid there's no evidence in this case about why the defendant in understand the waiver that we don't have a declaration that he didn't do no we do not there's no decoration there's a test and i don't think we have a declaration that he didn't know he was removed either do we that's correct we don't have that either and there's no testimony money on that point it's just attorney argument so i do see that my time's expiring if there are any other questions i'm happy to answer them but otherwise for some in our brief you know thank you for your argument thank you it speaking that broadly as opposed to just speaking the statute we get a lot of cases where congress is knowingly does and many a poet courts read it so that knowing we just thanks also gave an example in the quote i'm going to give you comes from just below that one to one hundred and ninety eight if status did not carry mens rhea justice writer writes for the  who was brought into the us unlawfully as a small child and was therefore unaware of her on one of his unlawful status would be subject to criminal prosecution if he possessed a gun the very same thing is true in this case that's the hypothetical a used in the reply brief an alien who was brought into the u s unlawfully as a small child is deported doesn't know it is brought back two weeks later say as a two year old and then at forty never learns his status is deported that's your innocence so i think we've spent time you want to give us records i think that i do ninety six to ninety