in this case were set in motion when those she was put into removal proceedings in the immigration judge deemed those florida convictions to be crimes involving moral we now know that this was legal error we now know that under the law and today the crimes committed were not crimes involving moral turpitude and i don't think i could be wrong but i don't think the government  fact fact in fact the district court recognized that probably these crimes today would not be considered crimes of moral turpitude so what we know today is that this is what i'm looking for that this is the best precedent or authority that you can come up with to support your argument that a change in the law is enough to make a proceeding fundamentally unfair such that you can lodge this collateral attack on the protection order that would be the ninth circuit case law your honor trying to figure out what the ninth circuit you're talking about the judge graders opinion in the ninth circuit i'm talking about the case in the united states versus camacho lopez cases the court focused on intervening cases clarified this crime was not a basis for removal and he was removed when he should not have been and he clearly some are prejudiced and that's the case here  immigration judge proceedings so if that language the same statutes today establish that those crimes are not crimes involving moral turpitude certainly that was the case then but this was a hidden error at the time it was a hidden  case hadn't been decided until some years later until two thousand and thirteen and so unfortunately this watkins was deported based on these crimes that are not crimes involving moral turpitude and we know that you know at the time they did we didn't know that she was sent out country saying just cascading problems separating her from her family from her life here sunny her back to jamaica where she let me ask your question if you're asking us to take as a given that this is no longer a crime involving moral turpitude and i think you're basing that on the decision of the board of immigration appeals and i can't pronounce this but so we got to both unpublished decisions one of this court and one of the immigration appeals court do we really need to get into the whole question of whether we should retroactively apply that to help your client not if we really aren't sure that that is the case that it really is a not a crime of moral turpitude and what what what i'm asking out loud is when you have a question of state law which is what this is and you have you have no decision from the florida court that says it does not involve moral turpitude would this be a candidate for certification under the uniform act to the supreme court of florida to answer that question authoritatively then then we if the answer from that the court is he it is not a crime of moral turpitude then we have to get into the question of whether you give her the benefit of that decision in this case your honor i don't think that this is a good case for certification to a state court simply because the concept of crime involving turpitude is a federal concept rather than a state concept so we aren't relying on state law in this case to determine the nature for the purposes of the immigration proceedings and we did cite two cases in our briefs from the board of immigration appeals and they were unpublished opinions and i can tell you and if the court is would find a benefit from knowing that there are more cases there are five other cases after that  unpublished cases from the board of immigration appeals saying that this particular florida statute is not a crime involving moral turpitude does it matter whether there are cases from either well if it doesn't matter whether they're  cases whether they're from our circuit or b i a when there is a supreme court case they com i mean is it incumbent upon us to conduct the analysis ourselves under de comp regardless of whether there are unpublished cases from our circuit or from the b i a on whether this is a crime involving moral turpitude yes your honor and particularly as judge titus mentioned he noted an unpublished two thousand  decision from the circuit and of course that proceeds to come up and the cop is going to have a different result that even if just to make sure i'm understanding your answer you're saying even if there were no cases at all whether published or on published from b i a and the eleventh circuit that your position is that it would still be incumbent upon us to conduct our own day comp analysis to see whether in fact they comp decisions from the board of immigration appeals addressing this very statute and consistently reaching the same result that that's a pretty good indicator we at least know that if miss watkins were facing deportation proceedings today it's extremely unlikely that she would be deported so at the get go at that at the beginning stages there's a mistake in terms of if we look at how the immigration courts are behaving now we know that she would not be deported on the basis of these crimes and so yes this court should certainly take every measure and making sure that a grave injustice is not perpetuated in this case as has good  what comes have been a challenge this deportation order before coming back into the united states not on the grounds that are available today your honor i mean unfortunately she did take matters into her hands it's not something that that i that i can that i would view as a good practice but she did reenter the country from my understanding she was back into the country prior to the remove to the decision in that case so would you just walk through a time line with me for a moment or the deportation order was entered in as a two thousand three thousand and three ok and they come comes out at two files her motion to reopen and her challenge with b i a after she gets arrested that's right ok so i'm going to tell you what i'm thinking this is a little strange maybe but as i was thinking about this case some more all of a sudden i started thinking about this case called robert johnson which is a supreme court case it's issued in the saying that he no longer necessary three qualifying crimes and so the question was whether that was whether he could do that and whether he had timely done it and in that case what he did was he waited for more than three years after he had been sentenced under the c c a to file it in the supreme court said he could have done it his name and we would have started the time running from when from when he became aware that the a c c a would have been applied to him but he waited three years and he wasn't reasonably diligent because he waited three years in doing that and you know i'm not sure whether that concept can be applied here obviously it's twenty two fifty five law as opposed to here and here we've got a statute that we're working with but i still have to construe the second requirement of the statute and i am sorry to ask it to you without any notice but do you have any thoughts at all on that i do and so i also will refer to the twenty two fifty five context and i also will mention a theory that hasn't been briefed but i think it's just so obviously parallel to the situation here that if i might use more time i'll tell you where i'm going with that and i'm thinking of bows leave the united states which was a hideous case and that was one where it was nine twenty four c and they just had decided that no longer a crime exactly no longer a crime just like you no longer a crime and so impossibly they address the theory of actual innocence actual innocence the court said did not even require the court to look at  actual innocence they said it was a way to get past the procedural barriers the time limits and that in a subsequent case macwhich and for perkins the court actually specified that under the eighty eight which has the time limits that actual innocence didn't just create equitable stoppel but it excused conformance with time limits it was an exception to time limits and so if we're going to be analogizing to twenty to fifty five cases i would ask the court to think about this in terms of actual innocence because we know now as far as the deportation proceedings she would not be subject to deportation under current law and so i and that's an appropriate way to look at that and if i might just take another thirty seconds i would say as far as it ministry to review judicial review being available of course a warrant because the case that she that is driving her claim today was not available during the  morning met please the court jonathan cohen on behalf of the united states with me tables michel vigilance to handle the case in the district court stephanie walk ins returned to the united states as early as two thousand and eight when she applied for a project driver's license without having read attempted to recenter removal order without having sought the permission of the department of homeland security and as counsel admits five years before the date cop decision even created any arguable right for her to contest her original removal order constitutes to failure to exhaust her administrative remedies if she had wanted to contest it at the time before her removal she she could have in fact she did this court has said that the purpose of thirteen twenty six d the due process right at stake is the right notice and an opportunity to seek relief from the b i a it does not matter whether you would have won it's the opportunity to have sought that relief doesn't that have to be meaningful relief and if the right didn't exist or a meaningful opportunity if the right didn't exist until twenty thirteen and now we're just assuming for purposes of this discussion that there is a right if their right to exist until twenty thirteen then how could she have had a meaningful opportunity to seek relief until twenty thirteen well first of all i just want to note that the government is not conceding that that florida grand theft would no longer be considered a crime of moral turpitude why i said what i want to just note that we can come back to it if we wish yes that's why i said were  for purposes of this discussion or but in many contexts a c c a statements calls and others the courts have recognized that the opportunity to present an argument does not depend on the success of your argument you could be the one who court prior to her removal that's been her removal should not have been justified she had the opportunity to be the person like the comp who can create new law but having had her chance to appeal she did to the b i a and then having been removed under a lot the order at the time it is simply lawless to say that a person who has been removed under a valid lawful removal order at the time can just return and in the event sometime down the line if the core law ever changes because she ignatz they comp they comp itself which doesn't resolve the issue and really creates the divisibility framework which could lead to an argument came five years at least after she obtained her fraudulent driver's license when she returned to united states if she's ever arrested somewhere down the line and then tried on for illegal reentry at that point she can contest her removal that's simply what not not what the twenty six d is about the purpose of thirteen twenty sixt to ensure due process rights that you had chances to remove to contest your removal prior to the fact and if some change in the law addresses whether your notice was proper that would be something that thirteen twenty sixty would allow but to say that an alien can you know who had it she had i have to dispute my colleague here and say that she could have prior to entering this country if she believed after day comp that there is a new legal framework that would change whether her crime removed and even though that order was valid at the time changes in how we've recognized crammed crimes of moral turpitude should should meant i should never of been removed can i have permission to reenter the country that's the process that we have we don't simply allow aliens to say unilaterally on their own decision i think the law is changed and i think i should have been allowed to stay i'm just going to reenter the united states obtain a freight driver's license and all bring it up later if i'm ever on reentry i mean i agree that it's problematic that she came in while there was an outstanding deportation while she had been deported there's i mean there's no question about that but now we have a new crime right and the new crime is based on there having been a valid deportation order i understand that your position is well there was a valid deportation order because it was valid at the time but if it's not if under current law it wouldn't have been issued i mean that also raises some troubling concerns i to it and they see you in a hand statutory sentence based on your prior crime then your pending decision as to whether you should be given an extra long sentence that you would look back and see whether those what those prior crimes are construed as today but you wouldn't let a defendant violate an existing lawful sentence by escaping and then if they're arrested and tried for the escape say well i should never have been in prison in the first place that sentence even though it was lawful when it was handed down today would never have been given out so the question of whether today she would ever have been removed is like the person saying well today i wouldn't have been sentenced to the enhanced statutory mandatory sentence at the time though it she still have a remedy well which she would have prior to her returning to the united states if she had a broad looked at the calm and said you know what i think the law in the united states has changed i know you or your argument is this is where she should have been asking which should she do this she still have a remedy well i mean the context is different she's now committed a new crime i mean that the crime of illegal reentry has been committed she returned without the permission of the department of homeland security and without having sought precision of the order and having done that she has known when she was validly committed this crime if she wants to contest her original removal i'm not sure what relevance it has after having committed the crime of your legal re entry you know which is what's at issue here today as to her ability to re enter the country now i mean she still has the same a bright to apply thereby merits th would probably be pretty weak one can always ask one can certainly always petition to the department of homeland security and explain the situation in appeal for discretionary relief but i think the merits of her argument would have to take into a fact take into account right in johnson versus roberts i mean in a different context twenty two fifty five but the court says hey you know it doesn't matter that seven years have passed since the guy was sentenced for his multiple convictions in state court if he can get them vacated after his sentences imposed within a reasonable period and he's diligent about it all is forgiven we're going to vacate that sentence and we're going to sentencing and that's that's in the context of a sentence not just a conviction so i mean i don't know if you want to address that i mean well i'm not as intimately familiar with the case but i think the key distinction you've just made is that he's seeking to rescind or vacate that existing sentence that's different from him having escaped and violating the sentence and then saying when you try to convict me for that escape i should never have received the sentence what the situation you've described is more akin to someone who prior to illegally returning six to rescind the removal or but it's really not because  in johnson versus and sorry in robert johnson that's the name of the case in robert johnson he thanked me did not have his state convictions vacated prior situation would be she is before the court on a removal today and if she were to say to the court i shouldn't be removed today because of the those prior convictions let's go back and recontest what those kinds of can what that conviction should be looked at that's the imposing of the sentence today having had that removal order which i say is akin to having had that sentence imposed in johnson the removal order is akin to the sentenc johnson you can't contest the removal order by violating it just as johnson can't contest that sentence by disregarding it and walking out of prison having her being removed is akin to johnson being in prison when you're in prison you're your remedy is to go to court and said that sentence should be vacated and here's why her remedy was when she was out of the country to apply to the rescinded and here is why or if for some reason that was not equipped she has the discretionary right or the right to appeal to department of homeland security for permission to reenter the country but i mean this is a classic case of you can't contest an order by violating it it would be as if johnson said instead of applying to the court to rescind or vacate my sentence i'm just going to unilaterally walk out of prison and if i'm arrested and put on trial for that seems different to me and in the cases where this court has in the courts generally have looked at and applied thirteen twenty six d's ability to collaterally attack it's been in the context where we think there was some due process violation at the geko that at the time there was some problem with your notice in your of your ability to go to the beach to contest immigration judges removal order is not been in the ninth circuit has gone the other way and we've argued in our brief why the fourth circuit's opinion we think  is more attuned to the law and in compliance with this court's decision it's a lie and frankly i'm not sure what the right answer is but i would like to explore with you you know why you once or when in that under thirteen twenty six but as to the fundamental unfairness is wrong the fact that the removal order was lawful at the time is what the fourth circuit has held it's what judge graber has in his concurring opinion in the ninety's argues and what the government's position years today is that the fact that the decision was lawful at the time means it was not fundamentally unfair the fundamental unfairness that thirteen twenty six d is meant to address is the kind of due process violation where there was some flaw in your ability to contest it at the time the remedies for intervening change in the law are not just to return they are to seek the rescission and their permission so we think the thirteen twenty six d context is not meant to address someone who just you know lottery returns and now is trying to contest a lawful order based on intervening changes not to the process that led to that led to the removal but to the legal basis for those are two separate re merely creates the framework of the divisibility and while the b i a has held that florida grand theft is not a crime involving moral turpitude the basis for its decision was on a distinction between temporary permanent takings that is something that this court has never addressed as far as i could determine that is something only that the b i a has discussed so i think in this circuit that is not a resolved issue the last time this court has discussed whether florida grand theft is a crime of moral turpitude as it's been noted this court has assumed that it was before de kock i mean let me ask before decus why is he your position that temporarily and permanently is divisible because i don't think it is i mean i think the statute is divisible under the first and second alternative paragraphs but not as to temporarily and permanently which is how it matters here maybe of a different position it's hard to say this could be one of those cases of means versus elements but what the government's position is is that it's an entire that is not ok i see you don't want to answer it but i mean is the reason you don't want to answer it because you kind of know that in fact it  is that it is not divisible it temporarily and permanently i think it would be difficult to say that it is that has divisible but rather than this court having no lower court ruling on the matter having no florida case addressing it it would be an odd procedure for this court in an appeal from illegal reentry to as a matter of first instance try to resolve that question the better practice the government holds is to say that thirteen twenty sixty does not allow that kind of legal challenge to someone who violated the law when there was no basis in the law for her doing so merely unilaterally returning on her own authority we believe her conviction should be upheld thank you we'll hear again issues concerning the matters with that it decides and i know that the b i a decisions that were relying on this case are unpublished and yet it's still as far as i can tell the best source to look at for a meaningful thoughtful analysis of whether this crime is a cia empty can you address mr collins escape analogy please yes i can but what we had here was an administrative proceeding not a criminal proceeding as far as the removal it was  where miss watkins was ejected from this country she was in jamaica and yes ultimately she was here but the idea on the prison break someone who's convicted of a crime the avenues for relief are abundantly clear to a person in that circumstance if you're in prison and the case comes out everybody in your community knows that you have a legal right to challenge that and how to do it miss watkins didn't have that benefit this watkins there was no lay person in this country let alone in jamaica knows what to comp is and what effect it would deportation at the time but something happened and lawful order became an unlawful order and as far as a conviction under thirteen twenty six an element as having that prior deportation order and justice requires that it be a valid deportation order justice common sense and a little pinch of mercy suggests that there has to be a valid deportation order for it to to happen and yes miss watkins came back to this country without having this issue resolved and she didn't and that i was so as we look at it today she thought she was committing a crime maybe at that point the court would have found it to be a crime but we know today it's not a crime and there's a doctor of a possibility if you do something you think it's a crime and it's not a crime it's not a crime if the elements aren't met if i go to my neighbor's house and i take his lawn more and i think i'm stealing it but he thought he gave it to me it doesn't matter if i'm furtive and sneaky and put it in my garage and hide it under a tarp it's not a crime and that's the same circumstance here so in the  the next cases presley