want thirty in september of two thousand and three to us yes when she did so she submitted that i want thirty and provide it to the government the things they need to have in order to find appellant and prosecute him for legal reinterview after deportation why do i say that because she provided his true name his actual address you think we have some maybe different language so what is your interpretation of the governments what the government must know about whether a person is here or not they must he must be found there must be a probability they can determine that he is in fact here b what they know that's the way that i want that's the way that i see you don't divide the two that they must actually know of the precedence and must have a reasonable basis or they could have found out that the president was illegal there must be a there must be  basis to determine that he might be in the country especially when you have a foreign national who advices you that he's here this is obvious hi this is my number and according to your databases i have been removed and it's just that for if you divide it into read santana sort of to suggest that's true if they come to an official checkpoint physically and immigration authorities sort of check through they've been found in at that point but that's different than constructive for knowledge of the legality isn't that how they look at it this are your own i would say in this case you can take that filing of that i want i want thirty and making a comparison to the example you just gave you have a person finding subject to clear review i believe your honor the the standard of the standard of review before the court is the noble as to statute of limitations interpret them but as does factual findings of not aware of  legality and presence wouldn't wouldn't that be just factual findings he made having looked at the wife's actions in the paperwork being imperfect that's correct but now going back to what it what i wanted to address to the court is that here p s application and in distinction from my case he was not forthright and honest he did not provide his actual a number he did not advise us cia as if he had in fact had a number before under which for his stay on the stand that the checks revealed that he had in fact been removed i asked him i asked him well what if you have this information and you're aware that this person has been removed further perhaps he's in the country and his that's a strong logistical suggestion what's your best case that attributes to the government knowledge of the legality and discovery based on a third party anomaly enforcement third party statement or action or the runner and in this case you know this case but what other case at any circuit level would attribute to the government the three fifty two triggering elements based on a third party statements or actions not the defendant i like to read a portion of of the decision of the net if i may be wrong but gergen error was the defendant saying here i am the defendant in this is the same can't know when i'm asking a case this is the wife saying he's here i surely in this that's the correct procedure but in this case he actually said he did so it's not the wife saying hi he's here it's him saying hi on here well it's actually has the forms filled out as if the wife is preparing it and actually she has stated as being the person who was submitting the petition and then he saw into some of it's a bit much to say that all that means that at some stage of this actually his signature that he signed it doesn't mean that he is making those representations as a written as if there were by the wife but nonetheless that that's your position we have that is my position because you actually compare that to an error how do you see that is as being the equivalent of good narrow it says we are you are going to in and in this case as in error you have enough to make a determination that he could be in the country now it's the failure of the immigration authorities to act upon that information the file was before the federal law enforcement service the government had enough information to make a determination it was clearly was in the country legally as a matter of fact when he was arrested eventually arrested he was found one of the block away from where his when he had disclosed his address in his  referrals to law enforcement are common through education is their common adjudications is one part of the immigration service they're the ones who determine whether or not you did your petition approved whether or not you get the benefits so is exactly what my client was doing seeking a benefit mind you he did the wrong way he signed his own form which he shouldn't have signed but he still sort of benefit and he provided sufficient information for the government to be aware that he was in the yes i can come of a question i mean generally it's usually a part of the no no i'm just teasing with you usually are i'm just thinking about what you said i would have thought it's usually the thirteen thirty five what is it thirty five eighty two is triggered when you arrest them or at the checkpoint you're saying it's as common when they're applying for benefits then that gets into the vast machinery of the government civil are they communicating with criminal so here's the question this may be just absolutely settled in the law is is is that government is actually of knowledge unquestionable when it comes to the larger world of ice a civil benefits immigration authority what he or she knows about presence is automatically attributed to the people who would know this case i know that what happened i'm just warning the best case because you know in the world of brady and other world you know well certainly even state law enforcement what they know is attributed to anybody else is that true in this immigration context where you have vast centers processing aliens for benefits are we going to say i you know the criminal foresman therefore is the clock starts ticking yes yes because for instance the i want thirty work yeah i went there with this petition with this i no that is very helpful one one way of looking at that would be that goes directly to problem to the government can't say didn't but but as to actual finding discovery it's a continuing offense you've got to have the person's body because communications could be untrue you get a letter that says he's here but it's not that's entirely possible i rewrote it and then in that case you'd agree the clock wouldn't start if you made some efforts in trying to determine where the not the good morning may please the court counsel well i'd like to begin by fundamentally disagreeing with the nature of this i went thirty as as the court is well aware this is a petition for benefit it is made by someone with status on behalf of someone who is presumably related to them and they're seeking to have their status adjusted by the filing of a by one forty a alien cannot file an i one thirty on his own behalf so the fact that his name is on that form is and know that it has no effect it actually is an heir the only person who could actually file that form would have been the he's the beneficiary would have been the petitioner his spouse or someone with status in the united states that could provide him with the vehicle for him to alter his status by filing what's called an i one forty a you where of a case that says that the government of what you can impute from the civil side which is one of your questions over to the criminal side and in this case what you have is a form that is inherently contradictory the critical question team that was left blank was whether your relative is currently residing in the united states so you have all this other information and the agent specifically testified that it's not uncommon when someone has been deported by the way that's the only thing the government knows about the defendant at this point is that he's been deported is that they used the address where they live for years the family uses the address and you're what you're asking us to do is just a firm no clear error that this wasn't sufficient to put the governor on notice or is there on certainty either in our law or among the circuits and you're asking for more i think that this case is resolved on the clear air standard of review i think that the district court's findings of fact are unassailable on this record so air so that would be the request but but clearly by our laws got some uncertainties that allow you to to the seven circuit thinks that we have a different standard constructive knowledge as to problems one what's your thought on that i think that if you go back to santiago i believe has the sort of in the district court alluded to it and it's ordered this good faith sort of little  out there were talks about someone presenting themselves and they let the main and they proceed on their way that in that case we would attribute knowledge but i don't think that there was ever any doubt that unlike an era where the defendant himself seeks and communicates with the government seeking to get temporary protected status when you have a third party or a situation such as this i really don't see the fifth circuit as as being the lobbying him an ambiguous at all actually i think that it's quite clear that under the two problems that we have no evidence in this record of presence in the united states given the given the verse purpose of th i one thirty's every year they are processed administratively not with a law enforcement bent in fact they're really there to provide a benefit it is a benefits organization if in fa there is information that shows that someone is here someone is working someone has been a prior deportation a referral can be made under these circumstances and our record the age of testifies that in the majority of cases the alien the beneficiary is not in the united states and that the family member is seeking to bring them in and basically it allows them to come back in with an eye when forty and this form had been filled and it said that the relative paragraph fourteen is currently in the united states and can't read the small print whatever else it says at that point is that sufficient to give actual knowledge i would i would be reluctant to say that that alone but what i'm trying to get a handle on is what is the nature of the knowledge the government is supposed to presence is discovered and noted by the immigration authorities and then of course the second prong which is reasonable in nature you know that they knowledge of the illegality of the aliens present must be reasonably attributable to and so at some point i think that that you would have a factual predicate that would be enough to satisfy and impute knowledge like an era where the individuals directly communicating with the government the government's corresponding back i think that that that is an entirely different situation than what we have here and and i do believe that where the form is not originated by the defendant himself or the the alien himself i think that it raises serious questions about what you can  look at those so so i think that the the more difficult legal question might be presented in a future case it is certainly not the same thing here because the factual question it could you ask include that perhaps this person might be in the united states is answer could i conclude that question yes i don't know i think i don't think i would have any i mean there's no way tell me i mean he could be and that's the point the point is that you have enough to make a determination that he could be now is terms of voting saying there's enough to make some further inquiry as opposed to actually making that finding at that time to make to make an assumption that he's not here because i want thirty five means and i don't know the actual statue runner but in years past the amount of fines that are done in the united states are sometimes as much as many petitions as those that are done for people outside of the country because if you look at the i want thirty fo thirty form specifically asked whether or not you can petition for that relative in conclude your immigration process in the united states that's the adjustment of status process that mr gay was referring to and that is that's a run of the mill application process that that's done every day in this country and that's typically done by people who enter the country lawfully or have changed tactics so it's not that the majority i want thirty's come from overseas or come from people who are living abroad some some do but i would not  of them do i don't think that's a that's a proper conclusion and i don't have the stat and i can tell you but i practice immigration law for the last minute five years of my life and i will tell you that i would say it's fifty fifty so in this case you have enough information to make a determination as to whether or not it's persons in the country legally or whether or not you should figure that out which is waging the war say you have everything before you the failure to act is not on my plate it's on the government and now years later they harder but i think when you have and i'll give it a person like my client because my client is not at the bottom of the heap in terms of priorities you are so the top of the heap he's a criminal i mean who's committed a serious crime who delivered cocaine this is not a guy who came into this country i think it important and now he placed himself back asking high alert to get a permanent residency well sure he's an eye color and i felt somebody who the government should get the most prone to aside from national security cases this relationship so i think you're going to have difficulty with what you do