offense that is everyone who enters the united states at a non designated time or place has also alluded examination inspection if you could just delete the word entry from a one and  statute would operate exactly the same way and even the government could have prosecuted is there any is is there any construction of a one in a two that would allow for a violation of a one without violating a t yes and that's i think both of my into her titian's i'm sorry if i'm the government's interpretation of the government's reading of this i don't believe so i don't think the government has ever denied that they've never identified any fact pattern it's not unusual interpretation there's there's going to be overlap just like any statute but there is an surplusage and i think under the government's the what you're reading is that alluding is you present yourself at a port of entry and somehow get through without inspection you know by misrepresenting yourself or something else that would  and so my speculation is that that would allow them to charge those people with a two but i i honestly don't know why they change their practice so what i'm asking this court to do is simply to reinstate what this district or my detroit have been doing for decades which is that if  section is not entirely subsumed by another subsection so i'm happy answering questions but otherwise over the rest of my time all right thank you please the court benjamin holly for the united states to answer your question about why we choose a juba's a one mr keller is correct there's no difference and penalties are immigration consequences anything of that nature there are basically two reasons one statutory and one practical on the subsume day one so they want to keep attempts and entry which means on the official restraint concept but i agree that we have not identified factual scenarios where you would be guilty of a one but not a two that said that doesn't end the analysis for a couple reasons the  we wouldn't be here we would be and we have been previously in other cases we chose a two because we're going to get the challenge of this either way as we should and we think that this accurately it is it is closer to prove a two no i don't think so  there might be interim make it might be have a how would you prove it so as we did in this case we had one witness who testified that he he and his colleagues followed footprints from near the border for several hours about four miles then they find mr crowley and a couple others hiding in some fixed brush and then they ask him you know are you citizen where you citizen of mexico you have the right to be here no and we use that evidence along with the circumstantial evidence of where he was found no one else goes there it's it's very rough rural rugged area entry where maybe he came through and kind of went off the road i think that if he would come up with it that would be hit that would be his burden to show no we i mean it's always with us to show that he eluded the examination inspection but here how do you prove that negative because with the circumstantial evidence of as the judge jury all i was looking at this found he's twenty miles from the port of entry in an area that no one would normally go unless you're hiking up from the border and again they found the footprints that they tracked up from the border so there is no evidence of any reason to believe that in the port of entry it's not it's more complex to say that there was going to challenge you to way we were going to end up here had we chosen a one or a two so that wasn't a determining factor for us the mr keller suggested that there might be trying to get these as things of that nature that's perfectly legal and in fact that's why the service does the choice to choose a wand or a two with respect to people who are caught outside of the port of entry and are applying for asylum make a difference only if i don't think so any role in the way that your decided to charge these so our argument and doesn't take a position here is my understanding but there are plenty of other cases in the pipeline coming to this court argument is that official restraint does not apply to a two and it does apply to a it's presumed the congress was doing that intentionally and purposely so again we recognize that there is certainly it's a pleasant certainly overlap in a two and a one but that's because this is not a situation where we're we're congress is trying to is looking at the same type of action and trying to carve out innocent conduct from coble conduct there covering the gaps there are trying to avoid any loopholes and surplusage as the supreme court said is just a clue and in this case it should not be a clue that some of the kids some of the tenants of interpretation are a little counterintuitive i think one of the few that is into this one just the basic ideas like why would congress have created the eighty one crime only to sense in making the relevant info and listening to in the government's never really given this court a reason why congress would have done that and so i do think that if you know the day it is fatal to their argument i think the only thing mr hali said about why they want to charge a two as opposed to