Good morning. Good morning, Your Honours. May it please the court. My name is Jennifer Berry, admitted law student, supervised by Andrew Napp appearing on behalf of Petitioner Mr. Hosey Muniz Alvarado. I will reserve two minutes of my time for about all your honours. And your law student at where? Southwestern Law School. Glad to have you here. Thank you
. Thank you. Your honours, this court should grant Mr. Muniz Alvarado's petition for review and vacate his removal order for the very simple reason that he is not removable for a fire armuffense or an aggravated felony fire armuffense as found by the board. This court's clear case law says under Aguilar Rios, Medina Lara and Hernandez that any California conviction relying on the definition of fire arm at former California penal code section 12001b is categorically never a removable fire armuffense or aggravated felony fire armuffense because the definition of fire arm at that California penal code section does not exclude antique firearms while the federal definition at 921a3 does and the California definition is indivisible so it's not subject to the modified categorical approach. Here Mr. Muniz Alvarado's convictions for California penal code section 246 and 120021a1 both rely on that definition. I'm having a hard time finding I looked at that this morning. I don't see where the 246 is shooting at a inhabited dwelling
. I don't see where the definition of fire armuffense any you know bears on this. In other words you can't you can't shoot at people even with an antique firearm right. I mean I'm sorry you're on the... The felonet possession there are some guns you can possess some guns you can't possess. Shooting at an inhabited dwelling it doesn't matter what kind of gun it is does it under the definition of firearms? Correct your honor so the statute or the definition of fire arm used for 246 is the definition of firearm at former California penal code section 12001b which is categorically never a removable firearm and so is your position that if on a federal preserve a person takes an antique firearm and shoots it in their inhabited dwelling he's not committing a federal crime? I don't know about a federal crime your honor but here the California penal code section 246 was charged as a grinder for mobility for a fire armuffense and the definition is categorically overbroad and the California definition does not satisfy that federal definition so it's not a firearm offense. Is it a crime involving moral turpitude? The crime involving moral turpitude was never charged by the government
. But doesn't cut off the time? No your honor. Didn't the IJ say that the crime of moral turpitude stopped the involved the stop time rule? For cancellation of removal but cancellation of removal does not apply if Mr. Muniz Alvarado is not removable and here the boards only finding a removable ability were on the firearm offense aggravated felony firearm offense so if Mr. Muniz Alvarado is not removable for the fire arm offense or aggravated felony firearm offense then there's no reason to discuss cancellation of removal. Additionally no crime involving moral turpitude was ever charged against Mr. Muniz Alvarado so that question is not before the. The whole case rises and falls on whether the felony possession charge can can can survive is that is that it? Correct your honor. And that depends on whether the offense is divisible or not
. It depends on whether the offense is categorically and if not categorically whether yes whether it's divisible and this Court has said that the definitional element which is that issue is indivisible so not subject to the modified categorical approach. So under the cases that's the end of the ballgame. Correct. Is it your position that the BIA relied solely on the 1202.1A felon in possession and did not press the 246 as a basis for removal? In its decision the board said it did not disturb the immigration judges finding that 246 was a firearm offense but the board's decision itself that that Mr. Muniz Alvarado was removable only for the 12.021A1 convicted. So you don't think that the board adopted the ij's finding on the 246? The board if it did not adopt the finding at least adopted the analysis which is the same for the 246 and the 12
.021A1 and for the firearm offense and aggravated felony firearm offense. And so because the only charges that were brought and found were the firearm offense and aggravated felony firearm offense that's all that was before this court. Respondent has not proven that those offenses are categor or are removable offenses and in fact has effectively conceded that they are not. And so for those reasons this court should grant the petition for review and vacate the removal. I understand the government wishes to have a remand. Yes your honor. What's your position on that? This court does not need to remand. Excuse me
. Respondent refers to the three element tests where only if all three elements are satisfied is remand appropriate and here or excuse me can remand we avoided and here all three elements are satisfied so there's no need to remand. The legal issue at question is purely legal. There's nothing within the board's area of expertise that could be brought to bear on remand. This court is only looking at whether the conviction is a match with the federal ground of removability defined expressly by title 18 and the board has no expertise in federal criminal matters. Well the Supreme Court and Romero Torres has been telling us time and again to remand to the BIA to allow them to express themselves on issues of immigration. It's your position that this is not really an issue of immigration. It's only an issue of federal law. Correct your honor and because the only legal issue is not within the board's area of expertise there's no need to remand
. In Medina Lara itself this court applied regular arreos without remanding to the board to allow the board to apply that in the first instance. Let me ask you sort of just a more broad question. Straycht me is a little odd. This your client is a lawful permanent resident but he's racking up felon he's left and right. Right I mean he's got a he's a felon possession of a firearm. He's got a burglary conviction. There were he's got firing at a shooting at a house and inhabited house. Is there anything I mean is he just immune from removal or what's what's his situation? Well at the time Mr
. Muniz Alvarado had been in a car accident with suffering some mental issues at the time and he only had two incidents that led to state criminal proceedings. Since that time there have been no other issues and based on those two proceedings the government only brought forward and the immigration judge and the board only found that Mr. Muniz Alvarado was removable for the firearms and aggravated felony fire arm offense. There were no other grounds of removable charged. There were no other grounds of removable charged from those two criminal or state criminal proceedings. So because the grounds of removable that were charged and found are no longer removal or this court says they're no longer removable offenses then yes Mr. Muniz Alvarado is not removable. Going back to the three elements test the second element is whether the record is developed and here because there were only two state criminal proceedings the record has been developed
. In fact page 194 of the record there's a back and forth between the immigration judge and the government's attorney. The government attorney considered bringing other charges and said we would probably do are based it off of the 246 because it's all the same scheme. Then in its answering brief respondent says that it didn't have an opportunity or reason to develop the record when that's that's simply not true although relevant documents of conviction were before the court for the 246 and 12.21A1 convictions. Finally the board has already decided this issue because it did find Mr. Muniz Alvarado removable by adopting the immigration judges reasoning that 12.21A1 was not a or wasn't aggravated felony fire arm offense because it did not involve an antique. So with all three elements satisfied there's no need to remand to the board
. This case is similar to Rivera-Cardis versus Holder where intervening case law after the board's decision created a clear framework that squarely controls the case and so this court could decide the case without having to remand to the board to allow it to apply the intervening case law. I see you're down to about five minutes. Did you want to reserve some time Ms. Berry? If your honors you don't have any further questions then yes. Thank you. Good morning. Good morning your honors may please the Court Greg Mack Council would respond at the Attorney General of the United States. As the Court is aware we've asked the Court to remand the case to the Board of Immigration and Bill Pills we believe remand is necessary because the legal landscape changed after the Board of Immigration and Pills entered its decision. That is the landscape with respect to firearms. What immigration aspect has changed in the Landscape Council? The immigration landscape hasn't changed certainly the federal criminal law has changed with respect to these immigration charges. So to be sure the Board doesn't necessarily have any expertise in examining whether these firearms charges are aggravated felonies those are those are federal criminal law questions. However the legal landscape did change and the Board should have an opportunity to address these issues in the first instance. Why? Because the Supreme Court as you'd intimated has said look the Board in the first instance should have the opportunity to at least examine those questions and offer its opinion on the case. What questions would those be? Those questions would be whether this particular firearm there's some there has been some revision in the California penal code with respect to the definition of firearms. So it changed I believe from California penal code section 1290 to I think now to 16 to me for a second could you turn the volume down just a little we're getting some feedback. Thanks sir
. That is the landscape with respect to firearms. What immigration aspect has changed in the Landscape Council? The immigration landscape hasn't changed certainly the federal criminal law has changed with respect to these immigration charges. So to be sure the Board doesn't necessarily have any expertise in examining whether these firearms charges are aggravated felonies those are those are federal criminal law questions. However the legal landscape did change and the Board should have an opportunity to address these issues in the first instance. Why? Because the Supreme Court as you'd intimated has said look the Board in the first instance should have the opportunity to at least examine those questions and offer its opinion on the case. What questions would those be? Those questions would be whether this particular firearm there's some there has been some revision in the California penal code with respect to the definition of firearms. So it changed I believe from California penal code section 1290 to I think now to 16 to me for a second could you turn the volume down just a little we're getting some feedback. Thanks sir. The definition of firearms at least the numbering on the in the California penal code has changed. So I'm not sure if there's any change that the Board needs to look at on remand but in the first instance they should have an opportunity say yes this is what the Ninth Circuit has said with respect to the definition of firearm and no or yes that this is an aggravated felony. In addition and I hesitate to say this but it's almost as if this would be a windfall if after the Landscape changed after the Board of Immigration feels decision came down that the firearm charge goes away within the Department of Homeland Security on remand doesn't have an opportunity at least to press the charge with respect to crime involving moral turpitude regarding these offenses. So can't you do that again can't you start again and bring well there may be some question asked to a final judgment from this court having some restu-ducata effect and bringing in that charge. So you're actively asking for remand so he can be recharged in a totally different way. I mean you can't that's not an appropriate thing to do. He's going to live or die by this one issue which is as you said correctly in my view this is an issue of construing federal and state law and that's nothing to do with BIA expertise. I mean we're not going to send it back so that there can be a redo by the Department of Homeland Security
. The definition of firearms at least the numbering on the in the California penal code has changed. So I'm not sure if there's any change that the Board needs to look at on remand but in the first instance they should have an opportunity say yes this is what the Ninth Circuit has said with respect to the definition of firearm and no or yes that this is an aggravated felony. In addition and I hesitate to say this but it's almost as if this would be a windfall if after the Landscape changed after the Board of Immigration feels decision came down that the firearm charge goes away within the Department of Homeland Security on remand doesn't have an opportunity at least to press the charge with respect to crime involving moral turpitude regarding these offenses. So can't you do that again can't you start again and bring well there may be some question asked to a final judgment from this court having some restu-ducata effect and bringing in that charge. So you're actively asking for remand so he can be recharged in a totally different way. I mean you can't that's not an appropriate thing to do. He's going to live or die by this one issue which is as you said correctly in my view this is an issue of construing federal and state law and that's nothing to do with BIA expertise. I mean we're not going to send it back so that there can be a redo by the Department of Homeland Security. Well not a redo by the Board of Immigration Appeals on the firearms but a opportunity for the Department of Homeland Security on remand to bring this crime involving moral turpitude. Why can't they bring that right now? There may be some question asked to whether there's a restu-ducata effect. We haven't ruled. Why can't they bring it right now? Well the case is before this court right now. Not there's no CIMT there's no crime involving more turpitude charge before this court. Yeah you can file that tomorrow there's no reason why you have to wait on us or BIA. The case is the order of removal in this case is before the court on review. So I wouldn't necessarily think that the Department of Homeland Security could bring
. Well not a redo by the Board of Immigration Appeals on the firearms but a opportunity for the Department of Homeland Security on remand to bring this crime involving moral turpitude. Why can't they bring that right now? There may be some question asked to whether there's a restu-ducata effect. We haven't ruled. Why can't they bring it right now? Well the case is before this court right now. Not there's no CIMT there's no crime involving more turpitude charge before this court. Yeah you can file that tomorrow there's no reason why you have to wait on us or BIA. The case is the order of removal in this case is before the court on review. So I wouldn't necessarily think that the Department of Homeland Security could bring. So if we grant if we grant the petition to review and they get the order of removal then you can bring the other action immediately. It might. It might. In my estimation we could. I would be concerned about an argument from Petitioners Council below to the Board of Immigration Appeals saying look the court's order means you can't ever be charged again going forward on the same set of operative facts that were before. Before we were. Let me just think out loud here if we were to hold that. This felony possession charge is not categorically a firearms offense for the reasons you know and if the offense is not divisible so there's no point in doing a modified caracal or a reproach
. So if we grant if we grant the petition to review and they get the order of removal then you can bring the other action immediately. It might. It might. In my estimation we could. I would be concerned about an argument from Petitioners Council below to the Board of Immigration Appeals saying look the court's order means you can't ever be charged again going forward on the same set of operative facts that were before. Before we were. Let me just think out loud here if we were to hold that. This felony possession charge is not categorically a firearms offense for the reasons you know and if the offense is not divisible so there's no point in doing a modified caracal or a reproach. That's all we hold any reason you can't go back and charge them with something else. I would like the courts all ordered to also say there's no foreclosure in the Department of Homeland Security. We don't. I have I'm just telling you what we hold don't don't change my high blow okay. Okay. We don't take special orders. Suppose that's what we hold. I see that as that's the issue here
. That's all we hold any reason you can't go back and charge them with something else. I would like the courts all ordered to also say there's no foreclosure in the Department of Homeland Security. We don't. I have I'm just telling you what we hold don't don't change my high blow okay. Okay. We don't take special orders. Suppose that's what we hold. I see that as that's the issue here. Is this a categorical crime? The answer is no. Is it divisible? No. Okay. That's all we hold then any reason you can't go back and throw it at him whatever else you've got. I personally don't I don't think there is a we're. I don't see it either really. And that's well good. I don't think we're foreclosed from bringing that and I think the Board of Immigration Appeals and the Prime Minister of Homeland Security could look at this record and say we aren't foreclosed from bringing a crime involving more perturperty charge
. Is this a categorical crime? The answer is no. Is it divisible? No. Okay. That's all we hold then any reason you can't go back and throw it at him whatever else you've got. I personally don't I don't think there is a we're. I don't see it either really. And that's well good. I don't think we're foreclosed from bringing that and I think the Board of Immigration Appeals and the Prime Minister of Homeland Security could look at this record and say we aren't foreclosed from bringing a crime involving more perturperty charge. If one is case gets back to the Board of Immigration Appeals. I mean there's no there's no rule of compulsory jointer as there is on counter claims in civil prep practice as far as I know you. Again I think we're in agreement about what we think the aggravated felony firearms charge. Well I'm curious to hear your answer. Is is is there any rule that you have to bring on all at once? You can't you can't piece me a letter or do it severely. I don't I don't think so and I don't think we're foreclosed but I would be concerned about an argument coming below when we could do in Department of Homeland Security does because of the criminal background history of this individual set and the individual says look you had one shot when it was before the immigration judge and the Board of Immigration Appeals you took that shot you didn't file a CIMT charge so you can't bring the CIMT charge but if the court issues the order with respect to the firearms the way the court suggested it's going to and we have this record before the court to the Board of Immigration Appeals I would certainly feel comfortable telling Department of Homeland Security bring the CIMT charge and we'll deal with arguments below with respect to whether they are foreclosed and going to the Board of Immigration Appeals. This is a procedure it's not there's no double jeopardy here. Correct you're right I'm anticipating the arguments that might happen below if the court grants the order and we do bring either any limitations issues and is it still timely? No no it's still it's still timely that the CIMT charge I believe is a viable claim there's no further questions thank you
. If one is case gets back to the Board of Immigration Appeals. I mean there's no there's no rule of compulsory jointer as there is on counter claims in civil prep practice as far as I know you. Again I think we're in agreement about what we think the aggravated felony firearms charge. Well I'm curious to hear your answer. Is is is there any rule that you have to bring on all at once? You can't you can't piece me a letter or do it severely. I don't I don't think so and I don't think we're foreclosed but I would be concerned about an argument coming below when we could do in Department of Homeland Security does because of the criminal background history of this individual set and the individual says look you had one shot when it was before the immigration judge and the Board of Immigration Appeals you took that shot you didn't file a CIMT charge so you can't bring the CIMT charge but if the court issues the order with respect to the firearms the way the court suggested it's going to and we have this record before the court to the Board of Immigration Appeals I would certainly feel comfortable telling Department of Homeland Security bring the CIMT charge and we'll deal with arguments below with respect to whether they are foreclosed and going to the Board of Immigration Appeals. This is a procedure it's not there's no double jeopardy here. Correct you're right I'm anticipating the arguments that might happen below if the court grants the order and we do bring either any limitations issues and is it still timely? No no it's still it's still timely that the CIMT charge I believe is a viable claim there's no further questions thank you. Thank you Mr. Mack it is very you get the last word. Thank you Your Honours I just like to go back to an earlier question about the 246 conviction California Penal Code section 12001.6b at the time did have the definition of from 12001b apply to 246 convictions so it would be controlled by the same definition additionally that means that in your the way you see it it's not a crime or moral turpitude because you can shoot at somebody's home that's inhabited with an anti gun instead of a modern gun. Well that would be for the fire arm issue has for the CIMT issue again it's not before this court the immigration judge below or the immigration judge below and the government's attorney both they had a discussion on the record about whether this was or whether there was a CIMT charge available when the immigration judge told the government's attorney that's your choice we just want to do everything do it every you're going to do all at once that's at page 195 the only response was to bring the aggravated felony fire arm offense so basically so what's before this court is that Sermonie's alvarado is not removable so his petition for review should be granted his removal order should be vacated and he should be brought back to this country as an LPR to rejoin his family. Thank you very much Ms. Berry. Mr
. Thank you Mr. Mack it is very you get the last word. Thank you Your Honours I just like to go back to an earlier question about the 246 conviction California Penal Code section 12001.6b at the time did have the definition of from 12001b apply to 246 convictions so it would be controlled by the same definition additionally that means that in your the way you see it it's not a crime or moral turpitude because you can shoot at somebody's home that's inhabited with an anti gun instead of a modern gun. Well that would be for the fire arm issue has for the CIMT issue again it's not before this court the immigration judge below or the immigration judge below and the government's attorney both they had a discussion on the record about whether this was or whether there was a CIMT charge available when the immigration judge told the government's attorney that's your choice we just want to do everything do it every you're going to do all at once that's at page 195 the only response was to bring the aggravated felony fire arm offense so basically so what's before this court is that Sermonie's alvarado is not removable so his petition for review should be granted his removal order should be vacated and he should be brought back to this country as an LPR to rejoin his family. Thank you very much Ms. Berry. Mr. McThink you as well the case just argued is submitted we want to thank you Ms. Berry Mr. now for taking this on a pro bono basis did a nice job Ms. Berry thank you
Good morning. Good morning, Your Honours. May it please the court. My name is Jennifer Berry, admitted law student, supervised by Andrew Napp appearing on behalf of Petitioner Mr. Hosey Muniz Alvarado. I will reserve two minutes of my time for about all your honours. And your law student at where? Southwestern Law School. Glad to have you here. Thank you. Thank you. Your honours, this court should grant Mr. Muniz Alvarado's petition for review and vacate his removal order for the very simple reason that he is not removable for a fire armuffense or an aggravated felony fire armuffense as found by the board. This court's clear case law says under Aguilar Rios, Medina Lara and Hernandez that any California conviction relying on the definition of fire arm at former California penal code section 12001b is categorically never a removable fire armuffense or aggravated felony fire armuffense because the definition of fire arm at that California penal code section does not exclude antique firearms while the federal definition at 921a3 does and the California definition is indivisible so it's not subject to the modified categorical approach. Here Mr. Muniz Alvarado's convictions for California penal code section 246 and 120021a1 both rely on that definition. I'm having a hard time finding I looked at that this morning. I don't see where the 246 is shooting at a inhabited dwelling. I don't see where the definition of fire armuffense any you know bears on this. In other words you can't you can't shoot at people even with an antique firearm right. I mean I'm sorry you're on the... The felonet possession there are some guns you can possess some guns you can't possess. Shooting at an inhabited dwelling it doesn't matter what kind of gun it is does it under the definition of firearms? Correct your honor so the statute or the definition of fire arm used for 246 is the definition of firearm at former California penal code section 12001b which is categorically never a removable firearm and so is your position that if on a federal preserve a person takes an antique firearm and shoots it in their inhabited dwelling he's not committing a federal crime? I don't know about a federal crime your honor but here the California penal code section 246 was charged as a grinder for mobility for a fire armuffense and the definition is categorically overbroad and the California definition does not satisfy that federal definition so it's not a firearm offense. Is it a crime involving moral turpitude? The crime involving moral turpitude was never charged by the government. But doesn't cut off the time? No your honor. Didn't the IJ say that the crime of moral turpitude stopped the involved the stop time rule? For cancellation of removal but cancellation of removal does not apply if Mr. Muniz Alvarado is not removable and here the boards only finding a removable ability were on the firearm offense aggravated felony firearm offense so if Mr. Muniz Alvarado is not removable for the fire arm offense or aggravated felony firearm offense then there's no reason to discuss cancellation of removal. Additionally no crime involving moral turpitude was ever charged against Mr. Muniz Alvarado so that question is not before the. The whole case rises and falls on whether the felony possession charge can can can survive is that is that it? Correct your honor. And that depends on whether the offense is divisible or not. It depends on whether the offense is categorically and if not categorically whether yes whether it's divisible and this Court has said that the definitional element which is that issue is indivisible so not subject to the modified categorical approach. So under the cases that's the end of the ballgame. Correct. Is it your position that the BIA relied solely on the 1202.1A felon in possession and did not press the 246 as a basis for removal? In its decision the board said it did not disturb the immigration judges finding that 246 was a firearm offense but the board's decision itself that that Mr. Muniz Alvarado was removable only for the 12.021A1 convicted. So you don't think that the board adopted the ij's finding on the 246? The board if it did not adopt the finding at least adopted the analysis which is the same for the 246 and the 12.021A1 and for the firearm offense and aggravated felony firearm offense. And so because the only charges that were brought and found were the firearm offense and aggravated felony firearm offense that's all that was before this court. Respondent has not proven that those offenses are categor or are removable offenses and in fact has effectively conceded that they are not. And so for those reasons this court should grant the petition for review and vacate the removal. I understand the government wishes to have a remand. Yes your honor. What's your position on that? This court does not need to remand. Excuse me. Respondent refers to the three element tests where only if all three elements are satisfied is remand appropriate and here or excuse me can remand we avoided and here all three elements are satisfied so there's no need to remand. The legal issue at question is purely legal. There's nothing within the board's area of expertise that could be brought to bear on remand. This court is only looking at whether the conviction is a match with the federal ground of removability defined expressly by title 18 and the board has no expertise in federal criminal matters. Well the Supreme Court and Romero Torres has been telling us time and again to remand to the BIA to allow them to express themselves on issues of immigration. It's your position that this is not really an issue of immigration. It's only an issue of federal law. Correct your honor and because the only legal issue is not within the board's area of expertise there's no need to remand. In Medina Lara itself this court applied regular arreos without remanding to the board to allow the board to apply that in the first instance. Let me ask you sort of just a more broad question. Straycht me is a little odd. This your client is a lawful permanent resident but he's racking up felon he's left and right. Right I mean he's got a he's a felon possession of a firearm. He's got a burglary conviction. There were he's got firing at a shooting at a house and inhabited house. Is there anything I mean is he just immune from removal or what's what's his situation? Well at the time Mr. Muniz Alvarado had been in a car accident with suffering some mental issues at the time and he only had two incidents that led to state criminal proceedings. Since that time there have been no other issues and based on those two proceedings the government only brought forward and the immigration judge and the board only found that Mr. Muniz Alvarado was removable for the firearms and aggravated felony fire arm offense. There were no other grounds of removable charged. There were no other grounds of removable charged from those two criminal or state criminal proceedings. So because the grounds of removable that were charged and found are no longer removal or this court says they're no longer removable offenses then yes Mr. Muniz Alvarado is not removable. Going back to the three elements test the second element is whether the record is developed and here because there were only two state criminal proceedings the record has been developed. In fact page 194 of the record there's a back and forth between the immigration judge and the government's attorney. The government attorney considered bringing other charges and said we would probably do are based it off of the 246 because it's all the same scheme. Then in its answering brief respondent says that it didn't have an opportunity or reason to develop the record when that's that's simply not true although relevant documents of conviction were before the court for the 246 and 12.21A1 convictions. Finally the board has already decided this issue because it did find Mr. Muniz Alvarado removable by adopting the immigration judges reasoning that 12.21A1 was not a or wasn't aggravated felony fire arm offense because it did not involve an antique. So with all three elements satisfied there's no need to remand to the board. This case is similar to Rivera-Cardis versus Holder where intervening case law after the board's decision created a clear framework that squarely controls the case and so this court could decide the case without having to remand to the board to allow it to apply the intervening case law. I see you're down to about five minutes. Did you want to reserve some time Ms. Berry? If your honors you don't have any further questions then yes. Thank you. Good morning. Good morning your honors may please the Court Greg Mack Council would respond at the Attorney General of the United States. As the Court is aware we've asked the Court to remand the case to the Board of Immigration and Bill Pills we believe remand is necessary because the legal landscape changed after the Board of Immigration and Pills entered its decision. That is the landscape with respect to firearms. What immigration aspect has changed in the Landscape Council? The immigration landscape hasn't changed certainly the federal criminal law has changed with respect to these immigration charges. So to be sure the Board doesn't necessarily have any expertise in examining whether these firearms charges are aggravated felonies those are those are federal criminal law questions. However the legal landscape did change and the Board should have an opportunity to address these issues in the first instance. Why? Because the Supreme Court as you'd intimated has said look the Board in the first instance should have the opportunity to at least examine those questions and offer its opinion on the case. What questions would those be? Those questions would be whether this particular firearm there's some there has been some revision in the California penal code with respect to the definition of firearms. So it changed I believe from California penal code section 1290 to I think now to 16 to me for a second could you turn the volume down just a little we're getting some feedback. Thanks sir. The definition of firearms at least the numbering on the in the California penal code has changed. So I'm not sure if there's any change that the Board needs to look at on remand but in the first instance they should have an opportunity say yes this is what the Ninth Circuit has said with respect to the definition of firearm and no or yes that this is an aggravated felony. In addition and I hesitate to say this but it's almost as if this would be a windfall if after the Landscape changed after the Board of Immigration feels decision came down that the firearm charge goes away within the Department of Homeland Security on remand doesn't have an opportunity at least to press the charge with respect to crime involving moral turpitude regarding these offenses. So can't you do that again can't you start again and bring well there may be some question asked to a final judgment from this court having some restu-ducata effect and bringing in that charge. So you're actively asking for remand so he can be recharged in a totally different way. I mean you can't that's not an appropriate thing to do. He's going to live or die by this one issue which is as you said correctly in my view this is an issue of construing federal and state law and that's nothing to do with BIA expertise. I mean we're not going to send it back so that there can be a redo by the Department of Homeland Security. Well not a redo by the Board of Immigration Appeals on the firearms but a opportunity for the Department of Homeland Security on remand to bring this crime involving moral turpitude. Why can't they bring that right now? There may be some question asked to whether there's a restu-ducata effect. We haven't ruled. Why can't they bring it right now? Well the case is before this court right now. Not there's no CIMT there's no crime involving more turpitude charge before this court. Yeah you can file that tomorrow there's no reason why you have to wait on us or BIA. The case is the order of removal in this case is before the court on review. So I wouldn't necessarily think that the Department of Homeland Security could bring. So if we grant if we grant the petition to review and they get the order of removal then you can bring the other action immediately. It might. It might. In my estimation we could. I would be concerned about an argument from Petitioners Council below to the Board of Immigration Appeals saying look the court's order means you can't ever be charged again going forward on the same set of operative facts that were before. Before we were. Let me just think out loud here if we were to hold that. This felony possession charge is not categorically a firearms offense for the reasons you know and if the offense is not divisible so there's no point in doing a modified caracal or a reproach. That's all we hold any reason you can't go back and charge them with something else. I would like the courts all ordered to also say there's no foreclosure in the Department of Homeland Security. We don't. I have I'm just telling you what we hold don't don't change my high blow okay. Okay. We don't take special orders. Suppose that's what we hold. I see that as that's the issue here. Is this a categorical crime? The answer is no. Is it divisible? No. Okay. That's all we hold then any reason you can't go back and throw it at him whatever else you've got. I personally don't I don't think there is a we're. I don't see it either really. And that's well good. I don't think we're foreclosed from bringing that and I think the Board of Immigration Appeals and the Prime Minister of Homeland Security could look at this record and say we aren't foreclosed from bringing a crime involving more perturperty charge. If one is case gets back to the Board of Immigration Appeals. I mean there's no there's no rule of compulsory jointer as there is on counter claims in civil prep practice as far as I know you. Again I think we're in agreement about what we think the aggravated felony firearms charge. Well I'm curious to hear your answer. Is is is there any rule that you have to bring on all at once? You can't you can't piece me a letter or do it severely. I don't I don't think so and I don't think we're foreclosed but I would be concerned about an argument coming below when we could do in Department of Homeland Security does because of the criminal background history of this individual set and the individual says look you had one shot when it was before the immigration judge and the Board of Immigration Appeals you took that shot you didn't file a CIMT charge so you can't bring the CIMT charge but if the court issues the order with respect to the firearms the way the court suggested it's going to and we have this record before the court to the Board of Immigration Appeals I would certainly feel comfortable telling Department of Homeland Security bring the CIMT charge and we'll deal with arguments below with respect to whether they are foreclosed and going to the Board of Immigration Appeals. This is a procedure it's not there's no double jeopardy here. Correct you're right I'm anticipating the arguments that might happen below if the court grants the order and we do bring either any limitations issues and is it still timely? No no it's still it's still timely that the CIMT charge I believe is a viable claim there's no further questions thank you. Thank you Mr. Mack it is very you get the last word. Thank you Your Honours I just like to go back to an earlier question about the 246 conviction California Penal Code section 12001.6b at the time did have the definition of from 12001b apply to 246 convictions so it would be controlled by the same definition additionally that means that in your the way you see it it's not a crime or moral turpitude because you can shoot at somebody's home that's inhabited with an anti gun instead of a modern gun. Well that would be for the fire arm issue has for the CIMT issue again it's not before this court the immigration judge below or the immigration judge below and the government's attorney both they had a discussion on the record about whether this was or whether there was a CIMT charge available when the immigration judge told the government's attorney that's your choice we just want to do everything do it every you're going to do all at once that's at page 195 the only response was to bring the aggravated felony fire arm offense so basically so what's before this court is that Sermonie's alvarado is not removable so his petition for review should be granted his removal order should be vacated and he should be brought back to this country as an LPR to rejoin his family. Thank you very much Ms. Berry. Mr. McThink you as well the case just argued is submitted we want to thank you Ms. Berry Mr. now for taking this on a pro bono basis did a nice job Ms. Berry thank yo