all the judges of the united states court of appeals for the four circuit oh yeah oh yeah oh yeah all persons having any manner or form of business before they are all the united states court of appeals for the th circuit are admonished to draw not and give their attention for the court is now sitting god save the united  i think it's important to highlight that the rule would be different between immigration cases and criminal cases and immigration cases we have no problem with the fact the courts are stripped of jurisdiction to hear claims by the aliens because the consequences are simply civil on so this only comes up in a context where criminal punishment is be imposed on the requires proof as an element of the prior removal order and that is a situation where the supreme court held mendoza lopez the th amendment requires some kind of meaningful review before that element or before that adjudication that agency duty cation can be used in a later prosecution to impose a criminal sanction  i frankly and i i speculated a little bit in the district court but i have no idea why this statute was an act it was an act of years after mendoza lopez mendel's lopez had been decided but it explicitly contradicts mendoza lopez in the context of these expedited removal orders the government's in the district court so held below she reached the merits of the decision which i'll get to in a moment but i would urge the court to adopt  attack so there's no problem stripping courts of jurisdiction and that simply cannot be the case i think it's important to review what these rules all orders really are on starting big picture there are really three types of removal orders that are used there one and that's a situation it there are two things important to know one it doesn't just cover aliens who are coming through the port of entry and are stopped coming in it covers anybody who is found within one hundred air miles of the border and who can't prove that they've been present for more than fourteen days so this is going to this these types of removal orders apply to plenty of people who even the government i think would concede have effected already an entry and have some sort of d make the congress to find a how far that reached it seems to me that that still functions well they do not want all the process applied this is an act of sovereignty basically at the borders if you're going to convict and i wonder why that that scheme isn't a reasonable way to read these sections i think it is your honor honestly i'm not sure the briefing exactly covered or addressed not way but conviction is just simply the guy can't challenge is removal it's a down and dirty removal at the border and he says he's been removed and they don't want the whole judicial process covering that order was issued improperly deprived and i'm in ohio you satisfy that but i think that the big thing that the government would rely on and try to defend in this case will hear the government but is whether th process was fundamentally unfair and i think we do sort of import due process notions that in our cases i think would have to be i'd like in that case just to talk straight about the do i'm not saying that i'm raising that that's seen some i'm not saying that's are my ultimate conclusion or the panels but that is an approach that sort of steps forward and if this if it's wrong i've loved to hear it united versus one yourself is basically in the context of the categorical approach which somehow decide basically the supreme court said that we need to avoid theoretical speculation about how the state or officers would something more than that but below preponderance so when the supreme court set that standard though for showing that a state law is applied in a certain way it attached an evidentiary standard to it it said you can meet this standard if you can point to a case where the law actually was applied in the way the special having come to the port of entry made a false statement being convicted of false statement to a federal officer serving a twelve month sentence with a crushing we consider that case which does that in a situation where there's one it one example of that  and in this case your client by macam his own is a illegal entry into the country and now it isn't the example he saw it so so different from the facts we have a year that meet is it your position we should or the reality that you that this is his th effort to enter the country legally and that would have no bearing on whether or not he would have been you know afforded a discretionary right to withdraw  application to answer i think my perspective maybe a little different i've seen people with thirty prior removal orders or prior actual to catch and release is essentially what they call back in the day on this is along the southern border  where at least this isn't in the record i'm just speaking from my personal experience so take it for what it is but on the other situation is there were four catch and release essentially voluntary returns in the mid ninety's and then nothing until the removal order in two thousand and fourteen i think there's an immigration judge rules of order st that we collaterally attack the government said they're not relying on so there's a gap in there a long time and in the meantime during that time he had to at the time of his extramarital order he had to united states citizen children here in virginia on so assuming and we don't know this but assuming that they're balancing the equities in deciding whether to grant withdraw the removal orders do absolutely count on the negative side or the prior even the catch and release is what they were positive equities he was working manual labor he was sending three thousand five hundred dollars a month back to his family his parents not to buy a car or any luxuries to build the house john or any did have significant family ties and citizen times  one believed was a misdemeanor you're the only felony was the dui the nd or subsequent to you why with the sentence of one suspended sentence of ninety days so that point you did have criminal history i would point out the other person though probably have the burden of proof in practice what factors the officers look at since the inspectors field manual was retired in two thousand and thirteen before this rule i don't have that information we requested it i did not file a motion to compel on but now he's i'll let the government address that and it please the court i'd like to start with the statutory question and then turn to the constitutional question in the statutory question and pick up on some questions of yours judge the mire is the relationship five which is dealing with arriving aliens of a certain type who are subject to expedited removal and the type is that they have to misrepresent themselves as u s citizens or presented false entry documents or black entry documents and not make a claim for asylum or fear prosecution and for that group of of of arriving aliens the language of of  twenty five dollars b one d does change in the government's view the standard under one thousand three hundred and twenty six dollars d and i think that both of the court of appeals opinions out there that have looked at the interaction of these two statutes the fist assuming jurisdiction in our courts are allowed to do that well i think that this is a unusual sir i'm stance you have to remember what we're talking about here is an affirmative defense there's no question that there is jurisdiction for the criminal case under and thirty one and so the question is can us do you have an affirmative defense in the scenario and as we're described in the in the brief is a harmlessness analysis it's like asking a question about it limitation on for example an affirmative defense like the arrest or insanity and saying well you know on the facts of this case you could never present an affirmative defense of duress or insanity so why are we analyzing the constitutionality of a limit on that affirmative whether you look at the village idiot of the underlying order as being valid or not this defendant can't show any prejudice so it's a typical harmlessness analysis that it would allow a court and a host of settings to say you know provision and rather than being an element it actually addresses the jurisdiction of the court and supreme court as you recognize in many cases of initiated that we don't construe the elements remove all the question i have and i was trying to explore with your colleague was whether we could construe that jurisdiction provision to be applicable only to  serious questions about how to handle that but i'm not sure we can just assume that jurisdiction and then decide prejudice because that's exactly what steele company told us we shouldn't do well let about anything other than an unlawful reentry prosecution i think that's a fair observation you know but as to the constitutional question i think that what's missing from the th circuit's analysis and is the core principle that the supreme court has recognized from cases like not for says shoghi nasi which is that whatever procedure is authorized by congress or whatever the procedure authorized by congress that is due process as far as the ilian denied entry is concerned and so what the defendant is trying to do here is use mendoza lope as essentially is to increase due process rights for an alien who isn't arriving eliane by virtue of them having later illegally rianne tired and i don't think that that is the way that the overarching standard for due process as works as the supreme court has viewed it but even if we just if we i think your argument is that the right to due process rights might be limited to the the statute or the regulations provide  yawn that they don't we still have the question that we've been talking about the statutory interpretation question i appreciate what you said about that but even if it's a more narrow view of the rights whether or not you have the rights that  the regulation of the statute provides then we still have to connor grapple with the jurisdictional issue so i think that do you have the defendant's position as look i want you to review provisions and the you've been an arriving ilian has been given who falls in this category of you know misrepresenting themselves as us citizen presenting faults untrue documents not claiming asylum and saying i want you to review rights the there isn't a review mechanism for in the statute and so that's adding a due process right the congress hasn't provided the supreme court has said you get the procedure that congress gives you and hear the defendant saying well i want this additional procedure and because which is this review because congress hasn't provided that you don't have a  demonstrate unfairness which also increase in the scape hatch that may save the whole bundle i don't know but then you have mendoza locus which explicitly says that the statute invision sic can you tell us make a distinction between the circumstances of mendoza lopez and the circumstances snice case that would allow us to distinguish that very plain old and sure and i think the critical point is mendoza lopez was not talking about arriving aliens and it wasn't altering the backdrop of the supreme court precedent about the limited due process rights that arriving aliens have and so essentially what you have is two lines constitutional doctrine that in this case are meeting one is in lopez which deals with aliens who have these greater constitutional protections because they're in the united states with says the circumstance you a solo as and then you have this other line of supreme court precedent about the due process rights of arriving aliens who don't have those greater rights and where the supreme court has said many times that you get the process that congress gives you and so this case essentially presents how those two lines get reconciled you're saying it just doesn't matter that it as long as you have the the removal order then matter what happened there a person could have been beaten anything could have happened in that removal proceeding and the court is handcuffed can well consider it and it becomes an element of the crime in the criminal prosecution that's been satisfied without any further  scrutiny by the court i want to be very careful to distinguish a whole whole host of scenarios that would not be presented here that don't get covered by one thousand two hundred and twenty five and a bit god like it answer the question if you would please what you're saying is that the mere fact of the removal order establishes the element of the crime right and the court is a powerless to examine anything concerning the validity of the evidence that element of the crime you get the process the congress provided for rogers no months you're saying there is this limited process that  something to race one thousand three hundred and twenty six dollars d three gives a gate to raise those things well let me answer the question by going back to the response i want to give to judge keenan which is there's a for its take the case of the border patrol agent who beats someone you're going to have bevins claims that are quite separate from a attack on the validity of the removal order and there could be a variety of constitutional claims that might not give you a right to entry into the united states that would not undermine the validity of a removal order but there would be a separate ok matter let's take it on into the criminal prosecution does the arriving ilian have any due process rights in the criminal prosecution since you say there are none with regard to the presentation of the removal order to the district  criminal prosecution well this just goes back to the supreme court's analysis of the due process rights of an arriving alien who is seeking admission to the united states and that question which is at the core of the validity of the underlying removal order is one that the supreme court has i mean is the quote from the supreme court has long held that an alien seeking admission to the united states requests the privilege and has no constitutional rights regarding its application for the power to admit or exclude aliens as a sovereign progressives or as the courts require put it not for shall going to see whatever the procedure authorized by congress is it is the due process as far as the alien denied entry is concerned those appeals from removal orders are you talking about criminal prosecutions there so that's talking about the validity of the as from or right right the underlying talking about criminal prosecutions i'm not talking about civil stuff sure but i mean about prosecuting somebody incarcerating and so what is going on when you look at a case like mendoza lopez in its application in this context is the defendant is saying because i am being prosecuted my rights as an arriving ele and have increased and there is no ground in the supreme court precedent for saying that actually there's kind of two tracks there is the alien who is in arriving alien who gets this limited process when subject to an expedited removal order but if you come back and are prosecuted now there is this further collection of rights on that removal order that you get because you came back and that doesn't make any sense in that reading turn in a bit of a bond till the holding of mendoza local i don't think it is because again mendoza lopez is dealing with a group of aliens who do have a higher footing in terms of their constitutional rights than they have and they have a they're both by constitutional doctrine and by the procedures in the regulations in the statutes they have these review mechanisms they have that greater right and so it all makes sense it works as a system to get actually that situation is different and i appreciate what you're saying i'm just holding up the case seems not so narrow right but the supreme court i think that on that point you have to look at when the supreme court's got two lines of authority that argue arguably could apply and there seems to be some tension you shouldn't just take the one that seems to create this tension and just ignore it i mean you have to respect both the lines of precedent and if if there is a conclusion that look you know one of them has to give way that's really not for a lower court to do i mean it's you know it just seems to me that the that prejudice takes care of the vast majority of these cases right and twenty six where you don't i mean what what does the government lose in this case by applying the language of mendoza lopez as written and not trying to carve out any distinctions i mean almost it's hard to conceive of too many cases where people are going to be able to prove prejudice and isn't that really where the government's interests lie it will rather than cutting everybody out no matter what it's going to be the stream really rare case when somebody's going to be able to show pride to have two points in response to that the st is that the government has a very strong interest in defending the constitutionality of of congressional enactment and that's particularly true in a context where the deference to the congress on immigration was particularly strong so it's having reached a reading of these two statutes that i think is pretty powerful that it does apply to one thousand three hundred and twenty six prosecutions it's it's not the executive branch you know roll to fail to defend congresses and ackerman's when properly construed to apply in the scenario but the nd point i think your honor is making is that once when you take the correct view that there is very limited due process application in the context of these cases even if you say there is review when you get down to the ok what's the due process right that was violated here it's hard to find anything and this defendant in court said there has to be some well it has a good vague i agree it doesn't really help us much it has said but is that in the context of arriving early and that's what process congress gives you and congress has given essentially i think nothing here hopwood with your most powerful point right as an act of sovereignty at the borders there's almost no process and basically the supreme court has unconstitutional it would have to be a due process argument so some kind of mendoza recognizes some due process but it can't be recognizing that the workers at it which would be inconsistent with a whole line of spr court cases talking about the process at the borders is really just a process and congress gets right and i think in this case that when you get past the question of what r is available there is very little to look at here in the way of i mean this defendant does not have valid claim of any kind of right to relief and that is a reflection of the very narrow rights that would apply to removing ellen essentially his claims are different ways of saying they should've allowed a voluntary departure conceding that the sky is never going to be about the merits of his claim now right now whether he has the right to challenge an inning and that's why i think that you know we have to start with the realization that this very narrow window if there's a right to challenge it's pretty hard to get through but it seems to me that you may be confusing success with the fact whether he can raise it in the st place in the context of a criminal prosecution well i think that it's kind of two sides of the same coin because you have again this line of preceden you get the rights the congress gives you and then whenever a court for example like the th circuit says we're going to look at it they find that there are just very few rights there and so there's nothing to do and so the the you the we can't have you know a limitation on review and putting you in the spot of saying but there's very little in the way of a substantive right to recognize here in the removal order and camp i'd like to start where my colleague left off your honor i think i want to make clear the due process violations were alleging are not independent free floating violations there are violations of the statutes and regulations the congress and act and so we agree generally the congress what do you envision as the right of process at the border somebody arrives at the border and he summarily rejected because he can't demonstrate any basis that we have announced any documentation justifying his entry and what is the due process right that you think is implicated that needs protection whatever procedures congress enact and you get to the hypothetical well what if a border agent shoots somebody else but that's not an entry issue that's that's a totally different issue and maybe it's a bit of ins crime or whatever it is but the idea is that when somebody arrives at the border and he's denied  some marilee because of the grease ins congress said which are in that documentation basically henri misrepresents his documentation congress said that ends it i would he's forfeited any consideration that we are prepared to give him i want to make a distinction here we are not saying that mr of year also how to do process right to enter the country now but the question is important in this case for the analysis  and twenty five b one d says courts should not get involved in this and the question is does that violate mendoza right and the question is it depends how you read mendoza and depends how much due process you think exists and when you start looking at how much due process exists then you look at these shaughnessy type cases the whole lot of cases and there's nothing much except what congress says you have a right to present the whole border we don't have an agent every square foot and so we treat somebody who is arriving at the gate the same as a person who arrives at the gate and is not discovered but within a one hundred miles of the gate in other words it's  that's a conceptual thing it's a little bit like somebody arriving by airplane in chicago that's his port of entry i mean that's where he's confronting the united states and i want to be in yet chicago's in the center of the country but i don't think that gets you very used false documents more not disputing that there were two things that could happen one they could have just processed him as a withdraw and he walks back in the mexico were to they enter an order of removal no an order of move comes with it's not simply denial of admission it's not simply denial of benefit thing to a denial of admission is one thousand two hundred and twenty five before the withdrawal of application in the last year that c b p published it to sixty two thousand four hundred and seventy percent of people who were deemed inadmissible were allowed to withdraw their application and go back to wherever they were coming from so that is the real procedure that replaced denial of admission of the supreme court talked about millions question as it is your yes so the thing is we're not alleging he was entitled to withdraw it's just the congress that these procedures in the attorney general published regulations that said things like in every case in which the expert i removed presume reasons will be applied and before removing an alien from the united states pursuant to the section the examining immigration officer shall create a record of the facts in the case and statements made by the alien the be accomplished by means of a sworn statement using form i need sixty seven a and b record of sworn statement in proceedings that's the due process violation we have is he never got a chance alien the matter right that's an that's imposed on the officers and it will it's a woman army that's administrative recordkeeping now the alien quote the alien shall be given an opportunity to respond to those charges in this war not as that's what the process he's right and that's the process he was deprived of though so congress we're not saying that we can this isn't a due process challenge to the facial validity of the statute we're saying congress set these procedures the immigration officer didn't follow them in this particular case and then suspect is that process which is a very limited level of process is that the process being addressed in mendoza how does mendoza square with o'shaughnessy some of these the whole doctrine of american only orders it doesn't exactly but it is they never really got to that issue your honor because it's d well the due process violation alleged in those lopez was that the immigration judge had told them about discretionary relief suspension of deportation but  failed to adequately explain it and answer their questions on the supreme court held that and actually deprived them of judicial review that was the deprivation of judicial all right thank you i think you will come down great councilman sit on to the next case