Legal Case Summary

Thank you, on. Angel De Leon versus Holder. Good morning, Your Honor. Good morning. Mia, please the court, I am privileged to represent Mr. Oscar Unheld De Leon before you today. This case is about impermissible statutory construction as applied to the factual finding made by the immigration judge and op-held by the Board of Immigration Appeals, specifically the interpretation of the term apprehended at the time of entry as set forth in the eligibility requirements for Nicotta relief. This is a question of law and this honorable court has jurisdiction over this matter and the power to review the lower court's holdings, denovo. The facts as determined by the immigration judge and upheld by the Board are undisputed and the evidence upon which the immigration judge and the Board relied shows conclusively that Mr. Unheld De Leon was not apprehended at the time of entry but rather at some time. After his entry that is at mile post nine of Aravaka Road East, which the record says is 25 miles. The record says it's within 25 miles of the Board that is the construction that the immigration judge gave it in her decision. Agent Huffman, the one who arrested the petitioner says that the mile post 17, which is where he arrested the petitioner, is within 23 miles of the US border. Mile post 17 and mile post nine are counted from where? Where's mile post zero? It's not clear from the record you're on and the maps that were submitted in the record and in the immigration court proceedings are not clear on where mile post zero is. What is clear? But mile post zero is not the border. It's clear. If mile post 17 is 23 miles of the border is zero is not the border. So we don't know where they're counting from. Usually I'm accustomed to these mile posts on the interstates around here and they count from state lines usually but that's not the case here. It does not appear to be so, Your Honor. What is clear is that there is no evidence in the record that Mr. Onheld Leon was observed immediately during or immediately after his entry into the United States to find that he was apprehended at the time of his entry when actually he was not observed until mile post nine is an arbitrary and unreasonable application of law. Who has the burden of proof here? The alien always has the burden of proving eligibility for the relief requested. And I take it. You're taking issue with the BIA definition of entry that requires freedom from official constraint. We are not taking issue with the idea of requiring proof of freedom from official restraint. There, there is a criticism that we have that freedom from restraint. As a general concept also includes freedom from surveillance unbeknownst to the alien. In this case, the only party that would have evidence of surveillance unbeknownst to the evident to the alien would be the government. But the only evidence that the government has presented is that Mr. Onheld Leon was not observed until mile post nine of Ravakar Road. Therefore, the government's evidence has met the petitioner's burden. So in other words, you accept this BIA policy that official restraint may take the form of surveillance unbeknownst to the alien. We do accept it, Your Honor. But accepting that, you say, well, if it's unknown to the alien, then in the government says that they observed unbeknownst to the alien at the point of entry, they have some obligation to tell you when that was. Or who did it? Who observed? Yes, Your Honor. If the government is the evidence that they've come up with is how close do they have to the border? Someone saying that they saw your client. According to Agent Huffman, the arresting Border Patrol agent, he was in his service vehicle around mile post nine when the truck containing Mr. Onheld Leon pass by and he was able to serve it

. How far in mile post nine from the border? It is unclear how far mile post nine is from the border from the record. I actually do have a Google map that I printed up for myself, Your Honor. It is not a map that was included in the record. That's a matter of public record. Well, we don't have to have a record. We don't have to have it in the record of this case. Is it northbound? Is is is mile post nine closer to the border than nine than mile post 17? I believe that our Avakar road east goes roughly parallel to the border. So mile post nine and mile post 17 could be equidistant from the border. Yes, Your Honor. They could be. But you said mile post 17 was 23 miles from the border. So mile post nine may be 23 miles from the border. Yes, Your Honor. It's not necessarily eight miles closer than. Yes, Your Honor. I'm looking. But they weren't so the so the vehicle wasn't moving away from the border. Is that what you're saying? The vehicle was certainly not going towards the border. And if the purpose, Mr. Onheld Leon's purpose was to be in a truck to take him back to his home in the United States, it was not going towards the border, Your Honor. No, but I'm necessarily going away from the border. It could be going parallel to the border. I understand your submission. Yes, Your Honor. So 19. Yes, I have it. And according to Google maps to to walk from the border to mile marker nine, I would take. I would take. It's 17 miles. How many? 17. 17 miles. Tonight from the border to mile post nine. Yes, Your Honor. Could I clarify to. You. You acknowledge that the alien always has the burden of proof as to freedom from official constraint. Identify for me the facts that you say me that burden. The fact is that the government did not observe Mr

. Onheld Leon until mile post nine. There's no evidence in the record that any government agent observed him prior to that time. Is there any evidence that would indicate how long he had been in the United States? Mr. Onheld Leon. At the time he was observed. I'm sorry. Is there any evidence to indicate that he was in the United States at the time he was observed at mile post nine. Yes, Your Honor. Is it is an established that he had crossed the border or he had he been here for 10 years? He admitted to crossing the border. He admitted to crossing the border. Yes, Your Honor. All right. And he admitted to crossing the border and going directly to mile post nine. Yes, Your Honor. I thought previously there was a whole thing about there was a whole other story that's now gone. There is there was some testimony about what happened to him after he was picked up where he was taken, where he was processed, who processed him. I see, but that it's not before. There haven't we haven't changed the story of what happened before he was picked up. We are not changing the story that he told at this point. There were some changes in his recitation of his history on that day. But those those facts are not the facts upon which the immigration judge and the board relied. They were lied only on agent Huffman's report and the form I-166C and the accompanying letter that he wrote to a government trial council during the time of the immigration judge proceeding. Can you understand why I'm having a little bit of difficulty? What you tell me is the aliens, Mr. Tallyons, he carries his burden by saying that the government hasn't met its burden. No, Your Honor, what we are saying is that the evidence introduced by the government, the only credible evidence upon which the immigration judge relied establishes clearly that he was not observed before mile marker 9. How does it establish that he wasn't observed? It establishes it because it's the only evidence in the record. No, it doesn't, it establishes where he was observed. How can it establish where he wasn't observed? How does it show the negative? And that's what that seems to be what you're relying on to meet the burden. Yes, Your Honor. And all I saw is that there's evidence where he was observed. Yes, Your Honor. Your Honor, respectfully, I don't know how it's possible to prove that somebody was not observed by a government agency prior to the evidence that was entered into the record. Right, but it just all goes back to the burden of proof. What about freedom, what about, I think it's matter of G that talks about freedom to go at large and mix with the population? Yes, Your Honor. Do you accept that standard? I accept that standard, but I am suggesting that matter of G does not apply in this case. Matter of G applies when the facts are not clear. And what we're saying is that the facts are clear. The facts are clear

. The government did not observe Mr. Onheld Leon prior to mile post 9. And what do we make of the fact that the IJ found Mr. Dolyan not to be credible and that that's not contested? That is not contested. The only thing that the immigration judge relied on was the report from Asian Huffman. That is the factual finding. We are relying on that and respectfully this honorable court I don't believe has jurisdiction over factual findings. My question was I wasn't speaking in terms of challenging factual findings. I was just speaking in terms of the quantity that I'm having with parsing the burden of proof. Your Honor, if I may try to provide an illustration. Suppose Nelson Mandela made his way out of decades of confinement and somehow made it to the United States with only the shirt on his back. No newspapers, no birth certificate, nothing. And he applied for asylum. Here in the United States there's plenty of newspaper articles, plenty of press about how he was held in confinement for his political opinion. He would still qualify for asylum even though he's not the one that's presenting that evidence. The government has made Mr. Onheld Leon's case for him. Can you tell me where I can find in the records? I can't find it right this minute. The immigration authority person's statement about the number when he first spied. It's in the administrative record, Your Honor, at page 1181 is the form G166C. And at 1183 is a follow-up letter from Asian Huffman dated June 3, 2010. The agent was not brought in for in-person testimony, Your Honor. The government could have called the agent for testimony. Yes, Your Honor. And Mr. D'Leon could have called the agent for testimony again. Yes, Your Honor. So is this the case where we should remain and see what the agent says when directly asked the question, when did you first? Your Honor, any in-person testimony by Asian Huffman would necessarily rely on the reports that he wrote on the report that he wrote 11 years ago. I understand that, but the report as far as I can tell you what your thing is incomplete. No, Your Honor. We're seeing we did not observe him until X-Date or I did observe him from the outset. It says 9. Maybe he wouldn't come in and say, you know, I just don't remember. Then we left with another. After all, it was 11 years ago. But I've read this, even though I couldn't find it today, I have read it a couple of times. And I think I'm correct that it does not say inclusively one way or the other. Well, respectfully, Your Honor

. I think it's clear it says on July 30, 2003, while assigned to line watch duties in the Aravakia Arizona area, I observed an older model Ford pickup truck pass my service vehicle vehicle on Aravakia road east at a approximately mile post nine. You're saying that's the point he was first observed. Yes, Your Honor. And there is no other point. There's no conflict in the record about some other person observing him some other time. No, Your Honor. And how long did he bend the United States at that point? He had been in the United States since 1988, Your Honor. No, but that, but. Oh, on that day, Your Honor. You're right. Possibly several hours. But the, but the BIA says it's unclear. At what point he actually entered, how much time had passed before he was spotted by Agent Huffman, and how far from the border he had traveled before he was detained? That's what the BIA says. What are we supposed to make of that? Well, Your Honor, I think that that is there saying they don't know. Well, yes, Your Honor. And the government not being able to believe your client. You say we believe God, believe your client. They're saying they don't believe your client. They don't know how long he bent here. But if we believe just the government, Your Honor, as the, if we believe just the government's report as the. I'm talking about the BIA. Yes, Your Honor. That's what's on appeal here. Yes, Your Honor. Well, both decisions are on appeal here. But that, that, that language comes from matter of G. And matter of G applies when the facts are not clear. And we're suggesting that the facts here are clear that according to the government's. And what we make of the fact that the BIA says they don't know that they're unclear. In fact, they say it. I use the word unclear. Yes, Your Honor. I, I understand what the BIA is saying. And I guess you claim that that's an acknowledgement. Yes, that they didn't see him. They don't know when he came in. It's unclear. Yes, Your Honor

. So that's the first time they did see him is the time that they said. Yes, Your Honor. Thank you. And is, and that also covers the. Given the circumstances, that also covers the. The lack of the. Lacking the freedom to go at large and mix with the population. Yes, Your Honor. He was a, he was free to go at large and mix with the population from the time that he entered the United States until my post nine. And you're relying on what specifically for that. The report from agent Huffman that he saw him at my own nine. Yes, Your Honor. So we're, we're making. Assumptions both about where he was first seen and what he was doing before he was first seen. Yes, Your Honor. Yes, Your Honor. Yes, Your Honor. There's no suggestion that. It flew there. No, Your Honor. I mean, he said he walked. He walked across the border. He said he walked. Yes, he walked across the border. And then he got into a truck. Then he, he rode from the border to this mile post nine. He rode from some point. After the border to Nile post nine. Wait a minute. Well, how far from the border was it they got into truck? It's unclear, Your Honor. It's unclear. Well, the BIA says unclear. Everything's unclear. Everything's unclear. Everything. Except that they saw him at mile post nine. Yes, Your Honor. And they don't know how long he was in the country before that is what they BIA opinion

. That's on appeal says or your petition for appeal says they don't know how long it even been in the country. Yes, Your Honor. The way it says it could have been here for a month or a year. Yes, Your Honor. He was only here for a little while. But they say they don't know. Yes, Your Honor. And there's going to be the experts. They don't know. There's there's case law that refers to somebody being in the United States for 30 minutes. That's matter of Z from the Board of Immigration Appeals. There's case law in the second circuit under a Chen that refers to four tenths of a mile. There's Nairenda in the eighth circuit that refers to two miles. It doesn't have to be anything but a brief period of time or a brief distance in order to count as an entry. So you'd have a harder case if he stopped as he walks across the border and then 100 yards away. They pick him up. It would be more difficult. Yes. The question would probably revolve around when he was observed. And of course the government has all the cards there because they have the witness that says when they observed the person. Yes, Your Honor. And we would suggest that that's conclusive. But he had walked and ridden at least 17 miles. According to the way I read the Google map, yes, Your Honor. And I do have, I made three cards. Some unknown period of time. Yes, Your Honor. Okay. I think we understand your argument with the government. Yes, Your Honor. Thank you. Good morning. May I please the court? My name is Jeffrey Lee. I'm appearing on behalf of the attorney general. The government's position is that the court lacks jurisdiction to entertain the petitioners factual challenge the board's decision here. The petitioners challenge essentially is that the evidence which he submitted or which was submitted by the government is sufficient to meet his burden of proof. However, under a weirer section 309 c5 c2. Such determinations are not subject to review anything that in terms of the the requirements for a weirer whether or not you enter before a certain date

. Whether you apply for relief by a certain date, whether you as well of this case were apprehended on your entry a certain date is not subject to review. It's not come. There are all these of pellet and other decisions about it. Those cases don't involve Nicarra. The cases that are mostly relied on our cases were in alien seeking to prove they have an entry. What you're saying we have to take the facts the way you all lay them out. It's not subject to review part of the facts aren't subject to review. The law is subject to review. Correct. Constitutional issues are subject to review. Right, but that's not presented here. This is simply a fact. What facts do we take here? What do you mean? Well, when did it come across the board? Let's next to question your honor. Well, it is an excellent question. I'm talking about on base this record. What's the government's position on when he got across the border? That directly relates to the adverse credibility fight. What? That directly relates to the adverse credibility fight. Well, it does. According to the petitioner, he entered 11 days earlier and was stopped at the border and was put in the tension. What's the government's position on? We take the facts the way you all found them. The BIA and the ALJ or whatever, or IJ. We take those facts, you say. But I just read to your colleague here, the BIA says it's unclear. Unclear. At what point the respondent actually entered. It's unclear how much time passed before he was spotted by Agent Hoffman. Hoffman. And it was unclear. Is unclear how far from the border he traveled? Correct. Before he'd been detained. So is that wrong? I think that's the board's point. Is that it's simply on this record we do know? Is that those facts incorrect? No, I think that is correct, Roger. So we don't know when he came across the border. And that's the aliens burden. I think that's the point. We don't know how long he had been there. We know that he had been. He was at my post-17, as all we know

. Right. And so he could have been come across the border a month earlier. That's the whole point. You're right. We simply don't know. That's entirely possible. All right. And according to the petitioner's testimony, which he maintained throughout. But higher proceedings. I came across a month earlier. It's hard to say that you apprehended any more. But I think that it also ties into the credibility finding is that. The petitioner's. Throughout his proceedings said that he had entered 11 days earlier. Was apprehended at the border. Was actually in detention at this point in time on July 30, which is the date when officer Hoffman's. Documentist comes into play. So we simply do not know. There's no credible testimony saying, yes, I entered on July 30. I walked 17 miles to Mount Milepost 9, got in a truck. All of that. If that was the situation, the case may have turned out differently. But because the alien has the burden, the board doesn't know what to believe here. The board doesn't have enough information on which to base this decision. Because we don't know when the petitioner entered. We don't know if he was apprehended at that point in time, as he said. We don't know if he was in detention at this point in time. We don't know any of these factors because there's been no credible testimony on that fact. The petitioner did not just simply appear on Milepost 9. Something happened between A and B and the board is concerned about that. Because the board says if we don't know what happened between A and B. Was he apprehended at the time of entry? That's the question is that we don't know. Well, what's your answer? But he has to be apprehended at the time of entry. But this will all work out for you, right? Right. So you can't just say we don't know. But we don't know if he was subject to restraint at that point in time under the constructive restraint. So we don't know what happened. But when we know that restraint can be a government agent looking at it

. Correct. But there is no government agent saying I looked at him at the point of entry. Correct, Your Honor. But we also don't know because of the adverse credibility finding if any of this is even believable. We just don't know. And that's what the board is striving for here is that in the absence of any clear evidence to support this, we simply do not know enough information to make this determination. And when you don't know, it has to devolve to the burden of proof. Correct, Your Honor. And it's, I think that as a matter of course is that when we see these kind of cases, if there's a clear story, that's going to be sufficient usually. But when there's not a clear story, this was a matter of G, is that it goes to the AOE and it had to demonstrate that they've made the entry. A matter of G, there were some AOE, this was the golden venture case where a ship was capsizing. People were coming on, on the United States soil. And there were some people who were very clear from the record. They had gotten to a certain point, there was no surveillance at that point in time. That was sufficient. Other AOE and that was the AOE and whose case was matter of G, it wasn't clear. It wasn't clear when he had come in, how long he had been there, how far he had gotten into the border. So that was the issue, and the burden fell on the AOE in that case. That's what the board is saying. You have where someone is more than 10 miles from the border and that's the first time that the government says that they spot it. I haven't seen any. So what case is like this? I haven't seen any cases like that. I haven't. I think that that's, that's goes to what I was saying is that when the facts are pretty clear, when there's no issue regarding credibility, no issue regarding the initial entry, that the case is usually don't revolve around that issue. So it's usually not decided or it simply doesn't need to be reached. This case is different because of the credibility finding. We simply do not know enough information for the board to make a decision. Keep talking about the credibility finding, but for purposes of this appeal, he's accepting. He's not making any contrary claim. He's not putting his credibility at issue. He's accepting the government's testimony and the government's theory. And accepting that, he's what, 10 more than 10 miles from the border. It's, it's possible, you're on her. But the board says, accepting that is 17 miles from the border, right? It's at mile post nine. I believe I, I, I, the map that I have. Well, you're the lawyer here. You're the only one who's picked it. But the, then the evidence that talks about mile post nine

. And, and she says the evidence, and I recall it, been, they said 17 miles from the border. So you're saying, you're saying he was apprehended for under the facts here. We give you the facts. Apriended 17 miles from the border. That's when he was seen. Right. Not actually, he knew he was actually taking physical custody, 25 miles from the border. You're right. Yes. 23 miles from you. And, and you have, and you, and you say that's at the time of entry. That we don't know that details up until that point. That's what the board's focusing on. I thought he had, I thought it had to be apprehended at the time of entry. Correct. All right. So the 17 miles when he first seen, and he's apprehended at that point. He's seen by officer Huffman. And, and he's apprehended at the 17 mile point. And you say, as a matter of law, that's the time of entry. I believe that the board's position on this is that it's a continuing process. You, it's not simply. No, but we don't go, we can only start to process at 17 miles because that's the first time he's by sawing. Right. And I think that's the board's problem here is that we don't know what happened up until that point. That is your, if you can see that's the first time somebody saw him, it seems to me that's the case is over. Well, that's an end of the evidence that we have, but that doesn't, it was the burden fired. That is the evidence we have. What we have is the evidence we have. Show us something else. I mean, I. He gave an explanation that's been rejected. Correct. You say corporate credibility, fine. I thought you mean that you probably better off with that. That way I read the phone because you've got to say. He was apprehended at the time of entry. And that was it. 17 miles from the border. The point he was first seen. Right. So that's your best case is that he was 70 miles. He was apprehended at 17 mile point. And that's the time of entry. That's the way you the BIA, the attorney general, the immigration authorities. That's the way you all interpret the law. Is that correct? In terms of. That's the point of entry was 17 mile. That's the point of apprehension. No. Well, I guess I'm confused. Is not apprehended until later. Right. First seen 17 miles, right? Correct. I don't think the board really addressed this spot on your honor. I don't I mean the immigration judge. That's got to be the law as you all interpreted that he was apprehended when he was first seen. Well, because the. And that's when. And that was the time of entry. I think that the. And we can review errors of law. We can't review. A third of the errors of fact we got to take your facts. I'm trying to give you your facts. Retreat. I'm. You say you don't know what the facts are, but I'm trying to give them to you. Right. And if I'm giving them to you wrong, I want this is your chance straight me out. Straightness out. Because we have to give you your facts. And. And it seems to me that your facts are. He was apprehended at the 17 mile point. Correct

. 17 miles from the border. The point he was first seen. Right. So that's your best case is that he was 70 miles. He was apprehended at 17 mile point. And that's the time of entry. That's the way you the BIA, the attorney general, the immigration authorities. That's the way you all interpret the law. Is that correct? In terms of. That's the point of entry was 17 mile. That's the point of apprehension. No. Well, I guess I'm confused. Is not apprehended until later. Right. First seen 17 miles, right? Correct. I don't think the board really addressed this spot on your honor. I don't I mean the immigration judge. That's got to be the law as you all interpreted that he was apprehended when he was first seen. Well, because the. And that's when. And that was the time of entry. I think that the. And we can review errors of law. We can't review. A third of the errors of fact we got to take your facts. I'm trying to give you your facts. Retreat. I'm. You say you don't know what the facts are, but I'm trying to give them to you. Right. And if I'm giving them to you wrong, I want this is your chance straight me out. Straightness out. Because we have to give you your facts. And. And it seems to me that your facts are. He was apprehended at the 17 mile point. Correct. Okay. But I think that's the point and that that is the under the law. The entry. Unless the at the entry was 17 miles from the border. Unless the entry unless the alien was so that your point in this case. Is the entry was 17 miles from the border when he was first seen. That constitutes an entry that can't that's the entry. And so that's a matter as a matter of law. Could I just clarify because it's unclear to me. I thought that the question is. Apprehension and entry aren't exactly. The same thing that entry is defined as freedom from. Official constraint, which could have been when he was spotted. Correct. And apprehension may or may not be. At that time, but it could be later on. I think that's. I think that's not identical. I think that's board is getting to with its discussion of restraint is that because. They don't know what happened up until he was. I didn't knew that. Right. Well, I think I'm giving you that fact that 17 miles when you saw. Right. He's not under restraint. That's that's. Under your visual restraint. But that's the. But that counts as everything. The board's decision is focused on what happens before that. The question is seems to me as a matter of law. Is the entry. At the 17 mile point. As a matter of law can the entry be 17 miles from the border? I mean, it can be at an airport. So I mean, it can be beyond the actual physical border. The immigration. How far? Well, how far? What if he first been seen in. In Nevada

. Okay. But I think that's the point and that that is the under the law. The entry. Unless the at the entry was 17 miles from the border. Unless the entry unless the alien was so that your point in this case. Is the entry was 17 miles from the border when he was first seen. That constitutes an entry that can't that's the entry. And so that's a matter as a matter of law. Could I just clarify because it's unclear to me. I thought that the question is. Apprehension and entry aren't exactly. The same thing that entry is defined as freedom from. Official constraint, which could have been when he was spotted. Correct. And apprehension may or may not be. At that time, but it could be later on. I think that's. I think that's not identical. I think that's board is getting to with its discussion of restraint is that because. They don't know what happened up until he was. I didn't knew that. Right. Well, I think I'm giving you that fact that 17 miles when you saw. Right. He's not under restraint. That's that's. Under your visual restraint. But that's the. But that counts as everything. The board's decision is focused on what happens before that. The question is seems to me as a matter of law. Is the entry. At the 17 mile point. As a matter of law can the entry be 17 miles from the border? I mean, it can be at an airport. So I mean, it can be beyond the actual physical border. The immigration. How far? Well, how far? What if he first been seen in. In Nevada. I think it's. It's 200 miles from the border. Would that have been the entry to. And maybe that's right to. I just. You know, what's the department of justice say. That entry means is it limited to 100 yards? Is it limited to 17 miles? Is this as far as you're ever going to go? Is it limited to 170 miles? I mean, what is it? Well, I mean, the board hasn't spoken to the issue of. How far? And anyway, you can get into the United States before it counts. So a lot of these cases have. Yeah, but that's been a different issue. Is it opposed to like the freedom from restraint from a car? Well, I can. I mean, just can I. A lot of things are getting said, but restraint. Can take the form of just visual surveillance. Regardless of whether. The alien is aware of it. Right. So it doesn't have to be physical. Right. And I give you that. He was restrained at 70 mile point. When he's seeing short. All right. In terms of the issue of whether. I have to judge. I think it's a good match again. Oh, yes, by all means. Well, I just thought that you. Began to and in your briefs. Sort of distinguish. Remember, you were about to tell us that these other cases. That he relies on are a different context. And they certainly are. But it seems to me that the government must be consistent through both context. Not just when it's going to assist the government's position, but when it would also assist the aliens, they must have some consistent position. Correct. And I must say I think the government has not done that. When it shoots them, they look at this one way

. I think it's. It's 200 miles from the border. Would that have been the entry to. And maybe that's right to. I just. You know, what's the department of justice say. That entry means is it limited to 100 yards? Is it limited to 17 miles? Is this as far as you're ever going to go? Is it limited to 170 miles? I mean, what is it? Well, I mean, the board hasn't spoken to the issue of. How far? And anyway, you can get into the United States before it counts. So a lot of these cases have. Yeah, but that's been a different issue. Is it opposed to like the freedom from restraint from a car? Well, I can. I mean, just can I. A lot of things are getting said, but restraint. Can take the form of just visual surveillance. Regardless of whether. The alien is aware of it. Right. So it doesn't have to be physical. Right. And I give you that. He was restrained at 70 mile point. When he's seeing short. All right. In terms of the issue of whether. I have to judge. I think it's a good match again. Oh, yes, by all means. Well, I just thought that you. Began to and in your briefs. Sort of distinguish. Remember, you were about to tell us that these other cases. That he relies on are a different context. And they certainly are. But it seems to me that the government must be consistent through both context. Not just when it's going to assist the government's position, but when it would also assist the aliens, they must have some consistent position. Correct. And I must say I think the government has not done that. When it shoots them, they look at this one way. And when it doesn't suit them, they look at it differently. I mean, it's come down on both ways. Your honor. There are cases where an alien. There's a case in the 11th circuit where an alien was flying a plane. And here in each, try to say that you may have been under radar. And that was not sufficient. Other cases. It has been where. And there's a 9th circuit case where the alien was 50 yards in the United States. Third circuit has said that there's should be some wiggle room that it shouldn't be just one toe on the line. And you're in. I think that's probably the more appropriate route. But the board in this case didn't actually adopt the immigration judges finding, which actually dealt with that issue of whether or not there's kind of a. Constructive border or something of that nature, where the border is more than just the line in the sand. So to speak, and it could be beyond that period of time. The board didn't adopt that. The board went the route that it did discussing the restraint and the fact that we don't know what happened up until the point on mile marker nine. But if you all say the border 17 miles wide. You don't say that. But that's the, I don't think the board saying that. The doctor saying said no. The board's not saying that, you know, that this is the starting point. The board is concerned here because while we know that the alien was spotted for the first time at mile marker 17, and that because we have this credibility finding, we don't know what happened up until that point. We don't know if you answered that day. We don't know if you went straight from, you know, the border to this point. We don't know if you was spotted by somebody else. We don't know all these different. If we give you the facts. Give you the benefit of the facts. What are they? That he came straight to the, from the border to 17 mile point. Or they've been there a couple of weeks and finally wandered up to the 17 mile point. Well, I mean, that's the problem is that we don't know. We went to Phoenix and then drove back to the 17 mile point. What's, what's the best case for the facts? We have to look at the facts in your favor. What's your best version of on this record? On this record, I mean, I think we can't just ignore the credibility finding though. Is that you did. I thought we were for purposes of this

. And when it doesn't suit them, they look at it differently. I mean, it's come down on both ways. Your honor. There are cases where an alien. There's a case in the 11th circuit where an alien was flying a plane. And here in each, try to say that you may have been under radar. And that was not sufficient. Other cases. It has been where. And there's a 9th circuit case where the alien was 50 yards in the United States. Third circuit has said that there's should be some wiggle room that it shouldn't be just one toe on the line. And you're in. I think that's probably the more appropriate route. But the board in this case didn't actually adopt the immigration judges finding, which actually dealt with that issue of whether or not there's kind of a. Constructive border or something of that nature, where the border is more than just the line in the sand. So to speak, and it could be beyond that period of time. The board didn't adopt that. The board went the route that it did discussing the restraint and the fact that we don't know what happened up until the point on mile marker nine. But if you all say the border 17 miles wide. You don't say that. But that's the, I don't think the board saying that. The doctor saying said no. The board's not saying that, you know, that this is the starting point. The board is concerned here because while we know that the alien was spotted for the first time at mile marker 17, and that because we have this credibility finding, we don't know what happened up until that point. We don't know if you answered that day. We don't know if you went straight from, you know, the border to this point. We don't know if you was spotted by somebody else. We don't know all these different. If we give you the facts. Give you the benefit of the facts. What are they? That he came straight to the, from the border to 17 mile point. Or they've been there a couple of weeks and finally wandered up to the 17 mile point. Well, I mean, that's the problem is that we don't know. We went to Phoenix and then drove back to the 17 mile point. What's, what's the best case for the facts? We have to look at the facts in your favor. What's your best version of on this record? On this record, I mean, I think we can't just ignore the credibility finding though. Is that you did. I thought we were for purposes of this. We have to. We've been totally ignored. We can't. We've been able to see the government's version. Right, but this is just that slice of time. So we don't know what happened before that. So that's the board's. The only thing we know is that he was first spotted. 17 mile. I'm voting to the record, yes. Okay. Now, if he was first spotted 100 mile from the board. Would you be making the same position? Same or you know, if there was the credibility finding probably yesterday. There's no. There's nothing about the credibility finding. We accept the government. The government says I first spotted him 100 miles from the border. And he says, oh, no, you didn't. I was. I was in Santa Fe. I was in New York. You didn't spot me at all. And the board rejects that. And we reject that. That's a credibility finding. We accept the government's version. So he was 100 miles from the board. I would. I would probably say no, but I don't know your honor. You probably say know what that they would probably not be the same argument that's being made here. Okay, so that wouldn't be. Upon entry. So it's somewhere between 17 miles and 100 miles. That there is a point of entry. Is that it from the board? How are we to discern that 17 miles seems quite far from the board. Agreed your honor. And I think that if we had the consistent story of how he got there, that this case would have turned out differently. But we're left with the record we have

. We have to. We've been totally ignored. We can't. We've been able to see the government's version. Right, but this is just that slice of time. So we don't know what happened before that. So that's the board's. The only thing we know is that he was first spotted. 17 mile. I'm voting to the record, yes. Okay. Now, if he was first spotted 100 mile from the board. Would you be making the same position? Same or you know, if there was the credibility finding probably yesterday. There's no. There's nothing about the credibility finding. We accept the government. The government says I first spotted him 100 miles from the border. And he says, oh, no, you didn't. I was. I was in Santa Fe. I was in New York. You didn't spot me at all. And the board rejects that. And we reject that. That's a credibility finding. We accept the government's version. So he was 100 miles from the board. I would. I would probably say no, but I don't know your honor. You probably say know what that they would probably not be the same argument that's being made here. Okay, so that wouldn't be. Upon entry. So it's somewhere between 17 miles and 100 miles. That there is a point of entry. Is that it from the board? How are we to discern that 17 miles seems quite far from the board. Agreed your honor. And I think that if we had the consistent story of how he got there, that this case would have turned out differently. But we're left with the record we have. We're left with the board decision we have. And that's. And we're left with the burden of proof. Correct. I think that's what the board was concerned with. Is that we simply don't know what happened between A and B. And it's very possible that it could have been a B line from the board. Well, we get well, which version is your is best for you. I mean, that the best version would be. B line from the board. I mean, it's tough to say your honor because I don't know what we. But we're soon we're going to give it to you. And I think that what's your best version? I think the shorter amount of time the better the shorter amount of time that he came across the border. And he jumped on the truck and he drove to 70 mob. I mean, I think that. You went 100 miles an hour. I mean, would that be better than if he had spent three weeks trivitling around. And a burger and a heel size to get to. Right. But I mean, the board doesn't really focus on that. So I don't really know. But we have to give you the facts. You got up here. The first thing you said is we can't contest the facts. Let me tell you we know that. We're talking about legal issue of what entry means. Correct. And we give you the facts. But it stays me like you don't know. You're not willing to tell us what your version of the facts is. That's because I don't know your runner. Well, let's give you the best when you come up with. In bird from what the circumstances that we know, he was 17 miles. We know where borderline is. You say it's not 17 miles wide. There is a border between Mexico and United States. And he was found or observed taken into custody. At the time he was observed apprehended 17 miles away from that border

. We're left with the board decision we have. And that's. And we're left with the burden of proof. Correct. I think that's what the board was concerned with. Is that we simply don't know what happened between A and B. And it's very possible that it could have been a B line from the board. Well, we get well, which version is your is best for you. I mean, that the best version would be. B line from the board. I mean, it's tough to say your honor because I don't know what we. But we're soon we're going to give it to you. And I think that what's your best version? I think the shorter amount of time the better the shorter amount of time that he came across the border. And he jumped on the truck and he drove to 70 mob. I mean, I think that. You went 100 miles an hour. I mean, would that be better than if he had spent three weeks trivitling around. And a burger and a heel size to get to. Right. But I mean, the board doesn't really focus on that. So I don't really know. But we have to give you the facts. You got up here. The first thing you said is we can't contest the facts. Let me tell you we know that. We're talking about legal issue of what entry means. Correct. And we give you the facts. But it stays me like you don't know. You're not willing to tell us what your version of the facts is. That's because I don't know your runner. Well, let's give you the best when you come up with. In bird from what the circumstances that we know, he was 17 miles. We know where borderline is. You say it's not 17 miles wide. There is a border between Mexico and United States. And he was found or observed taken into custody. At the time he was observed apprehended 17 miles away from that border. What's your best version? Is there anything more than that? Not that I could think of your honor. Well, actually, you don't even have to concede that he was first observed at my post-9. I mean, he could have been observed earlier by someone. And that would have been a part of Mr. Dalyans meeting of his bird approved. Correct. But you did concede several times earlier in this argument that he was first observed. Of course, into the record, but we don't know if there's anything besides record. Right, but that he still has the burden. The government. The government concedes that he was first observed at my. Mile post 17. That's the record. Well, that's the document that the border relies on for that issue. But there's still that's when he was first observed. That's when he was first observed by the government. The question is what happened before that which devolved back to Mr. Dalyans. The evidence we have. That's the first. Right. That's the first incident of being observed at mile marker nine. Whether or not there was something before that the A.A. It has nothing to record by anything before that. Right. That's also the. That's nine mile or 17 miles from the border. Right. We know those are hard facts. Right. And you can't infer from that that he was seen somewhere else. You can infer from that that he came directly from maybe from the border to that point. But I don't think that the board is inferring that there was something else. But it's placing the burden on the position. The board was alive in fact that he was observed for the first time. At. At the mile thing nine

. What's your best version? Is there anything more than that? Not that I could think of your honor. Well, actually, you don't even have to concede that he was first observed at my post-9. I mean, he could have been observed earlier by someone. And that would have been a part of Mr. Dalyans meeting of his bird approved. Correct. But you did concede several times earlier in this argument that he was first observed. Of course, into the record, but we don't know if there's anything besides record. Right, but that he still has the burden. The government. The government concedes that he was first observed at my. Mile post 17. That's the record. Well, that's the document that the border relies on for that issue. But there's still that's when he was first observed. That's when he was first observed by the government. The question is what happened before that which devolved back to Mr. Dalyans. The evidence we have. That's the first. Right. That's the first incident of being observed at mile marker nine. Whether or not there was something before that the A.A. It has nothing to record by anything before that. Right. That's also the. That's nine mile or 17 miles from the border. Right. We know those are hard facts. Right. And you can't infer from that that he was seen somewhere else. You can infer from that that he came directly from maybe from the border to that point. But I don't think that the board is inferring that there was something else. But it's placing the burden on the position. The board was alive in fact that he was observed for the first time. At. At the mile thing nine. Right. And then he was apprehended later. But the board doesn't know what happened before then and the board isn't the one that has to prove where he was. Right. I think that's the board's point here is that. On the evidence we have in the record this is the first incident. The A.A. And has the burden of proving not just that incident but everything up until that point. So if the A.A. And tells a consistent story and says you know I crossed the border at you know wherever made a deal on the. Incredible. Right. But that's the that's that's what we did. We can't deal with that. We have to deal with the hard facts. But I think the early and should give you the best version of the best version of the facts and the reasonable inferences. Isn't what usually happens when when. It is impossible to tell the party with the burner proof loses right isn't that our system usually work right. Unless the evidence with respect to a fact is solely within the power of the adverse party. I think it's a pretty good body of law that says that. And only the adverse party here the government would be able to say when he was first observed. Why would that be if he could have met someone who could have testified where he was between. Point between the entry. But I thought it would had the category is first observed by the government. But within this entry. It could be yes, but it's also I mean I think that the judge Duncan's point is that the A.A. In here has the burden of and I think that it's not necessarily the difficulty of a burden. I think in a matter of practice is that if there is no issue with quite ability there is no issue with any adverse facts. If an alien says I crossed the border made it straight to mile marker nine the courts public with the board's probably going to be like all right absent any issue about that. That will be sufficient but when they there is an adverse credibility when the issue of when and where and how and for how long he had been in the United States is at issue that's a different issue. But the observation has to be by a government because that means you're under the government control. Isn't that right? The first observation. There's case law on that that if it's like in the situation of a ship and you're the captain of the ship doesn't let you leave the confines of the boat that that stops constitutes restraint. There have been cases I can't think of them off the top of my head. No, I'm talking about the

. Right. And then he was apprehended later. But the board doesn't know what happened before then and the board isn't the one that has to prove where he was. Right. I think that's the board's point here is that. On the evidence we have in the record this is the first incident. The A.A. And has the burden of proving not just that incident but everything up until that point. So if the A.A. And tells a consistent story and says you know I crossed the border at you know wherever made a deal on the. Incredible. Right. But that's the that's that's what we did. We can't deal with that. We have to deal with the hard facts. But I think the early and should give you the best version of the best version of the facts and the reasonable inferences. Isn't what usually happens when when. It is impossible to tell the party with the burner proof loses right isn't that our system usually work right. Unless the evidence with respect to a fact is solely within the power of the adverse party. I think it's a pretty good body of law that says that. And only the adverse party here the government would be able to say when he was first observed. Why would that be if he could have met someone who could have testified where he was between. Point between the entry. But I thought it would had the category is first observed by the government. But within this entry. It could be yes, but it's also I mean I think that the judge Duncan's point is that the A.A. In here has the burden of and I think that it's not necessarily the difficulty of a burden. I think in a matter of practice is that if there is no issue with quite ability there is no issue with any adverse facts. If an alien says I crossed the border made it straight to mile marker nine the courts public with the board's probably going to be like all right absent any issue about that. That will be sufficient but when they there is an adverse credibility when the issue of when and where and how and for how long he had been in the United States is at issue that's a different issue. But the observation has to be by a government because that means you're under the government control. Isn't that right? The first observation. There's case law on that that if it's like in the situation of a ship and you're the captain of the ship doesn't let you leave the confines of the boat that that stops constitutes restraint. There have been cases I can't think of them off the top of my head. No, I'm talking about the. I guess I can look it up but you're telling me anybody observing him counts. I think it's got to be some kind of unique circumstance but generally speaking it is going to be the government. Because you had to have the show of authority and therefore it had to be the government. Right. So generally speaking unless there is some other kind of circumstance with another entity. I can't think about the top of my head but there has been. Okay. So in order for him to be seen, he would have had to have been seen in some official capacity. Is that that the answer to the question or by or by someone in a law enforcement or quite so if I had seen him, I'm not sure if that would be sufficient to count as being him under being. If I had been the one to see him if I'm just walking across the street and I see him, I don't think that's sufficient. So I think it has to be somebody of some kind of authority. Okay. Whether or not it has to be a government official in that kind of context of a border patrol. I don't know. I don't know. Police are sufficient. But the official restraint. Right. So I get it. I don't know if it's official. If Deputy Sheriff did it, maybe it was Deputy Sheriff PR. I think I think I think I think about that. I think we understand your argument. Thank you very much. Thank you. You have any rebuttal. Your honors. In all this discussion, I'm not sure how much more to add except to say that logically, if the government doesn't know how and when Mr. Onheld Leon entered the United States. Then he could not have been observed. And if he could not have been observed, he could not have been under official restraint, either actual or constructive. And to the point of Mr. Onheld Leon's burden of proving he was not under surveillance, unbeknownst to him. I would say again, how can he prove a negative when all the evidence of that negative is in the hands of the government. And what the government has given us is a report from Agent Huffman. And that's it. We do not contest that report. We rely on that report as the immigration judge did and as a Board of Immigration Appeals did

. Your honor, this case involves a simple issue of the incorrect interpretation. An application of the law with respect to the statutory term apprehended at the time of entry. To the facts in this matter. We plead with this honorable court to grant relief and hold that the immigration judge and Board of Immigration Appeals aired as a matter of law. Thank you. Thank you. We will come down and greet the lawyers and then go directly to our last case