[00:00:02] Speaker 00:
Good morning, Your Honors, and may it please the court.

[00:00:04] Speaker 00:
My name is Connie.

[00:00:06] Speaker 00:
I'm here on behalf of Mr. Yang.

[00:00:08] Speaker 00:
Like the defendant in the preceding case, my client was convicted by jury of conspiracy and aiding and abetting, and the predicate offense for both crimes is the transportation of illegal aliens in furtherance of their unlawful presence in the United States.

[00:00:26] Speaker 00:
I would like to address first

[00:00:28] Speaker 00:
the fundamental issue of how the statute on the transportation offense should be interpreted.

[00:00:34] Speaker 00:
And it's still not clear to us what the government's position is on this issue.

[00:00:40] Speaker 00:
But our fundamental argument is there is an affirmative legislative policy that certain types of conduct of illegal aliens

[00:00:55] Speaker 00:
that are not criminalized by the statute.

[00:00:57] Speaker 00:
And that's the ad of being transported by someone else, including the ads associated with being transported in a group.

[00:01:07] Speaker 00:
And without this affirmative legislative policy, the law of conspiracy and adding abetting is broad enough to criminalize simply an unlawfully present alien

[00:01:24] Speaker 00:
with simply being transporting.

[00:01:26] Speaker 00:
If they paid for a ticket to be transported on the ferry, on the bus, on the train, if the transporter knows they're illegal aliens and they intend to further their unlawful stay, there will be an agreement and a conspiracy.

[00:01:42] Speaker 00:
And by paying it and getting on the boat or ferry or train, they facilitate the commission of that offense.

[00:01:49] Speaker 00:
So automatically, there will be a criminal and a statute

[00:01:55] Speaker 00:
It seems that's the government's position, but they don't say it.

[00:02:00] Speaker 00:
But we submit to the court that is not how the statute should be interpreted because of the statutory scheme and because of the legislative history.

[00:02:10] Speaker 00:
In the statute, there's no mention of criminalizing an awful alien, an awfully present alien for being transported.

[00:02:20] Speaker 00:
The immigration statute went through multiple amendments and during one of the amendments, the prospect of criminalizing an alien for being employed without authorization was discussed, proposed and rejected.

[00:02:35] Speaker 00:
And then at that time, the rationale was basically we already have a system of removing aliens and the removal procedure.

[00:02:43] Speaker 00:
there's no need to overburden the system.

[00:02:47] Speaker 00:
And the result of criminalizing the aliens for being employed will be too harsh.

[00:02:53] Speaker 00:
So the understanding really from the Congress is we have the statute, it punish certain ads, impose criminal penalties for certain ads, but at the same time we have a different system dealing with the ads of the unlawful, the present aliens.

[00:03:11] Speaker 00:
And that's the distinction, that's the affirmative legislative policy we're arguing here.

[00:03:16] Speaker 00:
There is an exception to who can be prosecuted or what kind of conduct can be prosecuted under statute.

[00:03:24] Speaker 00:
And if we recognize that, then the next question is, what's the scope of this exception?

[00:03:31] Speaker 00:
Is it just limited to someone who pays the ticket?

[00:03:36] Speaker 00:
or does it extend to certain acts associated as extended to or inherent in the ad or being transported?

[00:03:45] Speaker 04:
Well, let's look at the sufficiency of the evidence here against your client, Mr. Yang.

[00:03:51] Speaker 04:
Yes, Your Honor.

[00:03:52] Speaker 04:
And so if we look at the basis of the evidence to be, it seems like a lot of it was connected to his wife.

[00:04:02] Speaker 04:
Is that correct?

[00:04:03] Speaker 04:
Yes.

[00:04:03] Speaker 04:
And that's pronounced.

[00:04:04] Speaker 04:
Is it wrong?

[00:04:05] Speaker 04:
Yes.

[00:04:07] Speaker 04:
Okay.

[00:04:07] Speaker 04:
And apparently from what I can tell, it looks like she had legal status from the very beginning.

[00:04:19] Speaker 04:
Is that correct?

[00:04:21] Speaker 00:
She initially had legal status.

[00:04:22] Speaker 04:
Yes, she had legal status.

[00:04:24] Speaker 04:
So I'm not sure I understand, you know, uh, how the conviction here,

[00:04:31] Speaker 04:
how it could be related to any transporting by Mr. Yang of his wife, if she had legal status the whole time.

[00:04:42] Speaker 00:
So what happened is a little bit complicated in her history.

[00:04:46] Speaker 00:
So she initially has status under CW1 work visa with an employer here.

[00:04:53] Speaker 00:
The employer then replied to renew her visa status and it was denied.

[00:04:58] Speaker 00:
So at the time of the incident involved in this case, she did not have status.

[00:05:02] Speaker 00:
But at the same time, the employer had already filed an appeal of the denial.

[00:05:06] Speaker 00:
So that appeal was pending.

[00:05:09] Speaker 04:
But prior to the indictment though, did everybody understand and agree

[00:05:16] Speaker 04:
that she was legally, she had status, legal status.

[00:05:21] Speaker 00:
So prior to the indictment, I think the appeal was successful and everybody agreed that at that time her status was restored because of the appeal, because the appeal was successful.

[00:05:33] Speaker 00:
I think for purpose of evaluating her status for applying for future visas, her status was basically considered, she never lost it.

[00:05:44] Speaker 00:
It's retroactive.

[00:05:46] Speaker 00:
And the jury was told that?

[00:05:48] Speaker 00:
I believe it's in one of the stipulations.

[00:05:51] Speaker 00:
Right, that's one of the stipulations.

[00:05:53] Speaker 03:
So then there's kind of another wrinkle in it because her visa status, as I understand it, wouldn't permit her to travel outside

[00:06:02] Speaker 03:
of CNMI, but she seemed to be on her way to Guam.

[00:06:09] Speaker 03:
So would she be permissibly legal within the context of being transported from Saipan to Guam?

[00:06:22] Speaker 00:
I think we're getting into an even more complicated issue.

[00:06:26] Speaker 00:
Because she's doing something that violates the conditions of her visa, does by the fact, has she actually at that time lost the status if she had a status in the first place?

[00:06:37] Speaker 00:
Did she lose that status by going to one?

[00:06:42] Speaker 00:
But we didn't actually address that because

[00:06:46] Speaker 00:
We think that because at that time of the incident, she had no status and the retroactive application doesn't suddenly, if there was a client that was committed, it doesn't really change a criminal ad into an innocent ad.

[00:06:59] Speaker 03:
Okay, well now I'm confused because I suppose the very simple question is, is the fact that she was given retroactive legal status in CNMI

[00:07:16] Speaker 03:
does that affect whether he can be found guilty for transporting an undocumented person?

[00:07:27] Speaker 00:
I don't know the answer to that question.

[00:07:30] Speaker 00:
And we certainly didn't argue that below.

[00:07:33] Speaker 00:
Our argument is basically, I understand the question.

[00:07:39] Speaker 03:
So if we kind of have to put that aside, then he is,

[00:07:46] Speaker 00:
transporting he's arranging for the transport of someone other than himself right if if that put aside um no that that's not our position not our arguments we're still arguing that yes there are undisciplined facts stipulated fact you pay for the deposit

[00:08:04] Speaker 00:
He went to the meeting to negotiate the amount of deposit and on the boat here, the captain was borrowing phones from all passengers and he was one of them.

[00:08:16] Speaker 03:
Let's leave the phone out of it right now, okay?

[00:08:19] Speaker 03:
Let's just get us from Saipan to the middle of the ocean.

[00:08:24] Speaker 00:
Yes.

[00:08:24] Speaker 03:
At that point,

[00:08:29] Speaker 03:
You're saying he really didn't argue this status situation.

[00:08:33] Speaker 03:
So he is arranging for the transport of someone else, right?

[00:08:42] Speaker 00:
I think our position is that he's not arranging that.

[00:08:44] Speaker 00:
He's paying for that and he's not doing arrangements.

[00:08:48] Speaker 00:
And it's- So he's just a ticket purchaser in your view.

[00:08:53] Speaker 00:
Yes.

[00:08:53] Speaker 00:
And this is, I think it's related to some of the questions that were asked in the previous argument is that's the scope of the legislative policy that we're arguing is.

[00:09:05] Speaker 00:
We think there are certain acts that are incidental or inherent that we

[00:09:09] Speaker 00:
maybe it's basic human interactions and relationship in today's society that go together with this affirmative legislative policy.

[00:09:19] Speaker 03:
Well, you've made this argument that there's some standard called inherent or incidental too.

[00:09:26] Speaker 03:
So in your view, how does that differ from what has been typically the Ninth Circuit standard, which is direct or substantial, which is set out under Moreno?

[00:09:40] Speaker 03:
Is there a difference between those two standards?

[00:09:43] Speaker 00:
I believe yes.

[00:09:47] Speaker 00:
There are two parts of the interpretation.

[00:09:50] Speaker 00:
There is the affirmative legislative policy.

[00:09:54] Speaker 00:
That's what we're arguing about the inherent or incidental standard.

[00:09:58] Speaker 03:
And that policy in your view would permit him to arrange for his wife?

[00:10:02] Speaker 00:
Yes, if they're traveling together.

[00:10:05] Speaker 00:
And then there is a second part, that's the Moreno standard, the direct or substantial test, the connection test.

[00:10:15] Speaker 00:
That's the part where, let's assume that he's not, he didn't want to go to Guam himself.

[00:10:24] Speaker 00:
Let's just say only his wife wanted to go to Guam.

[00:10:28] Speaker 00:
He volunteered to drive her, or sorry,

[00:10:31] Speaker 00:
to steer the boat, to take her to Guam.

[00:10:35] Speaker 00:
And then we have under Moreno, then we're arguing that that's still not sufficient.

[00:10:42] Speaker 00:
And because of their relationship, not because they're not, not that it's because husband and wife, automatically they're exempt because it's a basic human relationship.

[00:10:52] Speaker 00:
He's doing it not really to further,

[00:10:58] Speaker 00:
the evasion of law to help her continue in the US unlawfully, but he did it because this is his wife or someone else, if it's his friend or someone who asked and he did, he was not paid for it.

[00:11:11] Speaker 00:
And there was no evidence they were escaping.

[00:11:13] Speaker 00:
They're trying to escape prosecution or try to evade the law.

[00:11:17] Speaker 00:
And the comparable cases we will say is, for example, the Moreno, for example, in the Moreno,

[00:11:25] Speaker 00:
If we change the fact that the former in Moreno, suppose he is a husband, and one of the employees is his wife, driving his wife to work, and the Moreno, that wouldn't be sufficient.

[00:11:38] Speaker 00:
And in this case, my client wasn't even the captain.

[00:11:42] Speaker 00:
He was there as a passenger himself.

[00:11:45] Speaker 00:
So that's the second part of the statutory interpretation as to the elements.

[00:11:49] Speaker 02:
Counselor, am I understanding your argument to be that because the other passenger was his wife, there is no liability on the statute?

[00:11:58] Speaker 00:
Not just because of that fact.

[00:12:00] Speaker 00:
It's because the acts he performed, they were acts of

[00:12:05] Speaker 00:
they're they're inherent or incidental to that relation with basic human interactions that shouldn't subject so so a basic so you're saying there's an exception for basic human interactions um to the statute yes and that will be part of the affirmative legislative policy that we're arguing uh if that there isn't that exception basically the statute is just too broad to cover basically everybody uh well every

[00:12:36] Speaker 00:
illegal alien who lives with someone else, who interact with someone else.

[00:12:40] Speaker 02:
Do you have a case that you're relying upon to support that argument?

[00:12:46] Speaker 00:
I think our argument is, they don't say specifically, but I think we see it somewhere, for example, in the Selena Calderon case from the District of Kansas.

[00:13:00] Speaker 02:
Oh, the District of Kansas.

[00:13:02] Speaker 00:
You don't have anything in the Ninth Circuit to support that argument?

[00:13:07] Speaker 00:
from the ninth circuit, I would still say it's the Moreno, although it's in Moreno, it was dealing with the inference of element, but there was a language about humanitarian reasons where someone driving an alien to a hospital or something like that, it shouldn't count, but that's not, the statute doesn't say anything about that.

[00:13:28] Speaker 00:
So it has to come from somewhere and we think that's where

[00:13:33] Speaker 00:
It came from the affirmative legislative policy.

[00:13:35] Speaker 00:
They just some kind of ask that people do as a human in a society that shouldn't be part of this, that's criminalized by the statute.

[00:13:44] Speaker 04:
Did you want to reserve the balance of your time?

[00:13:46] Speaker 00:
Yes, thank you.

[00:14:02] Speaker 01:
Again, may it please the court, Eric O'Malley on behalf of the United States appellee in this case.

[00:14:07] Speaker 01:
Mr. Yang argues as if there are no limiting principles on how the government would prosecute these cases, arguing somehow that it would criminalize the mere presence of someone who, for example, had overstayed the visa.

[00:14:25] Speaker 01:
But it ignores the most obvious limiting principle that most of the case law that addresses this particular statute

[00:14:33] Speaker 01:
Focus on and that is what is the purpose of the transportation is the purpose of the transportation ordinary things that we do every day go to the grocery store.

[00:14:45] Speaker 01:
go to McDonald's to buy a Big Mac, take the kids to school, or is the purpose to further the unlawful presence of the aliens?

[00:14:54] Speaker 01:
And in this case, I don't think that it's really disputable that the whole purpose, the only purpose of this particular transportation was to move these aliens from Saipan where jobs were scarce

[00:15:09] Speaker 01:
to Guam where perceptually the jobs were plentiful and better paying.

[00:15:15] Speaker 03:
So we have the same situation here where there's a stipulation that the individual's transportation of himself or herself is not sufficient, correct?

[00:15:27] Speaker 01:
That was the order of how the jury was instructed and we did not object to that.

[00:15:34] Speaker 03:
And you didn't object to it.

[00:15:35] Speaker 03:
So that's kind of a baseline.

[00:15:36] Speaker 03:
So the only way then

[00:15:40] Speaker 03:
to hold him liable is for the transportation of someone else.

[00:15:46] Speaker 03:
And it was focused on the wife, correct?

[00:15:49] Speaker 01:
We didn't focus on the wife at trial.

[00:15:52] Speaker 01:
The government's position is that he could have been held responsible for all of the others.

[00:15:59] Speaker 04:
But most of the overt acts were related to the wife in his case.

[00:16:03] Speaker 01:
They were, but the law of conspiracy

[00:16:06] Speaker 01:
holds that you don't have to know the full extent of your other co-conspirators actions.

[00:16:12] Speaker 01:
You only have to know and agree on the common purpose.

[00:16:15] Speaker 01:
And in this case, the evidence certainly was overwhelming that they all had the common purpose of getting the whole group, the team to go on.

[00:16:25] Speaker 03:
I don't wanna put words in council's mouth, but I think I divined that with respect to the wife's immigration status,

[00:16:35] Speaker 03:
He said he would be potentially unsure about what impact that had.

[00:16:42] Speaker 03:
What is the government's view?

[00:16:44] Speaker 01:
The government's view is that no, it would not have any impact for a couple of different reasons.

[00:16:48] Speaker 01:
First, at the time of the transportation,

[00:16:52] Speaker 01:
she had the criminal intent, he had the criminal intent because in both of their knowledge at the time was they did not have status even to be in Saipan.

[00:17:04] Speaker 01:
More importantly, none of their statuses allowed them to go to Guam.

[00:17:08] Speaker 01:
So that I think is kind of the bottom line, they weren't authorized.

[00:17:12] Speaker 03:
Her status was restricted to Saipan, to CNMI, correct?

[00:17:15] Speaker 01:
It was, it was, Your Honor.

[00:17:18] Speaker 01:
that her status was a mess.

[00:17:21] Speaker 01:
And I think that was probably certainly taken into consideration by this jury that decided that in degrees of participation, her participation was minimal, more akin to a fee paying passenger, whereas both Wang and Yang's role was more involved

[00:17:39] Speaker 01:
and elevated them to the position of participant and not just mere passenger.

[00:17:43] Speaker 03:
Can you just go back to your one statement?

[00:17:45] Speaker 03:
You said at the time of transport, they knew at the time that she didn't have status.

[00:17:51] Speaker 03:
But my understanding was at the time of the indictment that this immigration snafu had been cleared up.

[00:18:01] Speaker 03:
Is that not true?

[00:18:03] Speaker 01:
I don't know the exact sequence.

[00:18:05] Speaker 01:
My recollection is that we indicted

[00:18:08] Speaker 01:
and then learned after the indictment that her status had been granted and applied retroactively to cover all of the time.

[00:18:16] Speaker 04:
Are you sure that wasn't before?

[00:18:18] Speaker 01:
I don't wanna speak with any certainty, but that was my recollection.

[00:18:24] Speaker 04:
But let's just say, okay, you acknowledge that her status, the retroactivity of it made her status lawful.

[00:18:37] Speaker 04:
at the time that this occurred.

[00:18:39] Speaker 04:
In the CNMI.

[00:18:40] Speaker 04:
Yes.

[00:18:41] Speaker 04:
Okay.

[00:18:42] Speaker 04:
So she had lawful status in the CNMI at the time that this occurred.

[00:18:47] Speaker 04:
Correct.

[00:18:49] Speaker 01:
Rector actively.

[00:18:50] Speaker 01:
Yes.

[00:18:51] Speaker 04:
And, but that's, and so you proceeded with indictment or let's just say you found out later, but you proceeded with the trial knowing that correct.

[00:19:01] Speaker 04:
Okay.

[00:19:02] Speaker 04:
So I'm just trying to figure out how can someone be

[00:19:06] Speaker 04:
liable, criminally liable, for transporting someone, which one of the elements I believe of defense, who is here unlawfully.

[00:19:17] Speaker 04:
How is that possible when she had legal status?

[00:19:21] Speaker 01:
Well, because they were trying to go to Guam.

[00:19:23] Speaker 01:
they were trying to go to a place where she didn't have lawful status, where she wouldn't have the ability to work lawfully.

[00:19:33] Speaker 01:
So because that was the purpose, the objective of the conspiracy.

[00:19:37] Speaker 01:
And again, the nature of a conspiracy doesn't have to be complete.

[00:19:41] Speaker 01:
It's the agreement that is important.

[00:19:46] Speaker 04:
It seemed like a lot of your overt acts and

[00:19:51] Speaker 04:
arguments were based on Hearst's lawful status in CNMI, but am I incorrect in how I reviewed that?

[00:20:01] Speaker 04:
It didn't look like from what I read in terms of the indictment and the other pleadings and what's the district court and what was presented, it looked like the focus was on Hearst's status in the CNMI.

[00:20:19] Speaker 04:
You're saying otherwise.

[00:20:22] Speaker 01:
I'm saying that under the law, none of their permits, whether they were overstays or not, none of their permits allowed them to go to Guam.

[00:20:32] Speaker 01:
That is something that they all had knowledge of.

[00:20:36] Speaker 01:
The reason why they went by boat and engaged in this very dangerous

[00:20:41] Speaker 01:
activity was because they did not, they knew that they could not lawfully go by plane, which is much easier, much quicker and much safer.

[00:20:50] Speaker 01:
And because they chose to engage in this criminal conduct, they put many lives at risk, not only their own, but all of those that had to go out, find them and rescue them.

[00:21:00] Speaker 03:
We don't have the benefit of the closing argument for some reason, although we tried to get it, but we don't seem to have it in the record.

[00:21:08] Speaker 03:
So I don't know what was argued at closing, but was it presented during trial that when she left CNMI, that she wasn't, her status would not be lawful?

[00:21:24] Speaker 01:
I don't recall that being a issue that was argued one way or the other.

[00:21:29] Speaker 01:
I don't recall arguing that on behalf of the government.

[00:21:33] Speaker 01:
Our position is that at the time that she

[00:21:36] Speaker 01:
engaged in this activity, her mental awareness, and more importantly, the defendant, Mr. Yang's mental, his understanding was that neither he nor his wife had lawful status.

[00:21:50] Speaker 01:
He had no status.

[00:21:52] Speaker 01:
He was out of status.

[00:21:53] Speaker 01:
He never got retroactive status.

[00:21:55] Speaker 01:
So he was definitely out of status.

[00:21:57] Speaker 01:
But at the time that they engaged in this conspiracy, his understanding was that she was unlawfully present.

[00:22:06] Speaker 01:
That aside, neither of them, under any circumstances, were allowed to go to Guam.

[00:22:10] Speaker 04:
That's what's making this a little bit complicated for me.

[00:22:13] Speaker 04:
I'll just speak for myself.

[00:22:14] Speaker 04:
And it's clear that most of them, I think, did not have legal status in the CNMI.

[00:22:22] Speaker 04:
Is that correct?

[00:22:23] Speaker 04:
That's correct.

[00:22:24] Speaker 04:
But she did.

[00:22:26] Speaker 01:
retroactively, yes.

[00:22:27] Speaker 04:
Yeah, but it doesn't matter.

[00:22:28] Speaker 04:
I mean, you're the government, you represent the government.

[00:22:30] Speaker 04:
It said she had status from the beginning.

[00:22:32] Speaker 04:
So the retroactive, I appreciate, but she had status at the time, correct?

[00:22:37] Speaker 01:
She had criminal intent at the time.

[00:22:41] Speaker 04:
How do you have criminal intent when you have legal status?

[00:22:44] Speaker 04:
How do you have, and that's what I'm trying to drill down on.

[00:22:46] Speaker 04:
How do you have criminal intent when you have legal status, at least with respect to CNMI?

[00:22:52] Speaker 01:
At the time, she, and more importantly, her husband, believed that she did not have legal status.

[00:23:00] Speaker 01:
He believed that she was here unlawfully.

[00:23:02] Speaker 01:
And as to go to his intent, he entered a conspiracy to further her unlawful presence.

[00:23:09] Speaker 04:
Yeah, I'm just having trouble legally, whether that's a legal possibility for someone to transport somebody, whether they had, who was here, who had lawful status.

[00:23:21] Speaker 01:
You can still engage in unlawful behavior, even if you have lawful status.

[00:23:26] Speaker 01:
And that's what happens.

[00:23:27] Speaker 04:
In this particular case, when you're transporting someone and the main element is that they didn't have lawful status, that's what becomes a little complicated for me.

[00:23:36] Speaker 04:
And that's what I'm trying to sort out.

[00:23:40] Speaker 01:
If you have criminal intent at the time that you commit the crime,

[00:23:43] Speaker 01:
And he did.

[00:23:44] Speaker 01:
He did not know that she would be granted retroactive status.

[00:23:49] Speaker 01:
The harm is the same.

[00:23:51] Speaker 01:
The harm is they engage in dangerous behavior that requires a search and rescue and has the potential harm of allowing a group of

[00:24:01] Speaker 01:
unlawful aliens make it to Guam where that frustrates the purpose of a legitimate government function, which is the detection and detention and removal of aliens who are unlawfully present.

[00:24:13] Speaker 03:
So does it matter then the timing of when the notice came that she would get unlawful status and it would be retroactive?

[00:24:24] Speaker 03:
Does it matter as to whether that was time-wise vis-a-vis the actual transport

[00:24:30] Speaker 03:
or the indictment or at some other point.

[00:24:34] Speaker 01:
Only if there was some element of knowledge that they somehow knew that the status would be coming.

[00:24:44] Speaker 01:
And again, we're focusing only on Mr. Yang's conduct.

[00:24:48] Speaker 01:
And the timing, certainly it's a complicated issue.

[00:24:52] Speaker 03:
And when they grant- Maybe you can help me with this complicated issue because

[00:24:59] Speaker 03:
Where in the record would we be able to reconstruct the timeline?

[00:25:03] Speaker 03:
That's what I was trying to do.

[00:25:06] Speaker 01:
It shouldn't be that hard.

[00:25:07] Speaker 01:
I can't remember if it was actually in the stipulations, the exact dates of when everything was granted versus the indictment.

[00:25:15] Speaker 01:
But the harm, we want to focus on the harm here.

[00:25:21] Speaker 01:
What is the harm?

[00:25:22] Speaker 01:
They intended to engage in criminal conduct, what in their mind, they knew to be criminal conduct on the day of the transportation.

[00:25:30] Speaker 01:
That caused harm.

[00:25:31] Speaker 01:
That put lives in danger.

[00:25:33] Speaker 01:
That risked a group of aliens making it to Guam and escaping being allowed to further their unlawful presence.

[00:25:39] Speaker 01:
That is the harm, regardless of whether or not Mr. Yang's wife was retroactively granted a lawful status to be just in the scene of mine.

[00:25:50] Speaker 01:
They made the decision to go to Guam so that they could have better job prospects in Guam.

[00:25:56] Speaker 01:
And I think it bears noting that

[00:25:58] Speaker 01:
in regards to Mr. Yang's argument that there should be some type of exception for spouses or incidental aliens.

[00:26:08] Speaker 01:
In this case, of course, that's not written in the law anywhere.

[00:26:12] Speaker 01:
And as I say, if the legislature doesn't act, the court should be very reluctant to act.

[00:26:19] Speaker 04:
It looks like under the law, it says the underlying transportation offense requires that the transported alien is in the United States unlawfully.

[00:26:30] Speaker 04:
So was Ms.

[00:26:32] Speaker 04:
Wong in the United States unlawfully at the time that this occurred?

[00:26:39] Speaker 04:
In the minds of the defendants?

[00:26:40] Speaker 04:
No, I just appreciate your intent.

[00:26:45] Speaker 04:
Was she unlawful?

[00:26:46] Speaker 04:
Because I think this is more of a legal question here, okay?

[00:26:50] Speaker 04:
So was she here unlawfully at the time of this offense?

[00:26:54] Speaker 01:
She was.

[00:26:55] Speaker 01:
retroactively lawfully present in the scene of mine.

[00:27:00] Speaker 01:
But she was not lawfully allowed to go to any other part of the United States, which is what the conspiracy was to do.

[00:27:07] Speaker 04:
And so this one I'm trying to drill down on, it says, so one of the elements is underlying transportation requires that the transportation is in the United States unlawfully.

[00:27:20] Speaker 04:
Does it say that the element includes, and that she would not have been unlawful had she'd been transported?

[00:27:27] Speaker 01:
The element is whether or not someone was being transported to further their unlawful presence.

[00:27:36] Speaker 01:
And if she was, the purpose of the conspiracy was to go to Guam, then the purpose, she would have been unlawfully present when this moment that she stepped foot in Guam.

[00:27:48] Speaker 01:
And that was the common purpose of the conspiracy.

[00:27:54] Speaker 04:
Yeah, I'm just struggling a little bit.

[00:27:58] Speaker 04:
What's required is that she would not be here lawfully.

[00:28:03] Speaker 04:
The language is the transport is in the United States unlawfully.

[00:28:09] Speaker 04:
And it does not appear, even if she intended to go to Guam where she wouldn't have been unlawful, that she was unlawfully

[00:28:18] Speaker 04:
but maybe that's what I was trying to figure out and I wanted to give you an opportunity to answer.

[00:28:24] Speaker 01:
It is a curious question and I'll just step back and say he was also responsible for engaging in a conspiracy and a scheme and a venture that involved the transportation of not just his wife, but an additional seven.

[00:28:38] Speaker 04:
And if we focus on the others, what's the best evidence

[00:28:42] Speaker 04:
excluding the wife, because it looked a lot of it was directed toward the wife.

[00:28:46] Speaker 04:
What's the best evidence like you went through with us on the other case regarding the others?

[00:28:53] Speaker 01:
The same evidence that the court recited in its order that he went to the meetings, he made the payments, he went to the subgroup and participated in the negotiation.

[00:29:05] Speaker 04:
But the payments were for he and his wife?

[00:29:07] Speaker 01:
Yes.

[00:29:08] Speaker 04:
Okay, so not for the others.

[00:29:12] Speaker 01:
He was furthering again, it was a team effort.

[00:29:15] Speaker 01:
Once you join the criminal venture, the individual objective becomes the common objective.

[00:29:24] Speaker 03:
So I think I found the stipulation and there's two parts to it.

[00:29:31] Speaker 03:
One part talks about what a CW-1 visa or status holder is and CW-2.

[00:29:42] Speaker 03:
that relates to the defend dependence, but it doesn't authorize you to travel to any other part of the United States, including Guam without an appropriate visa or waiver.

[00:29:58] Speaker 03:
Otherwise you're deemed to have violated his or her CW one or two status.

[00:30:07] Speaker 03:
So is that,

[00:30:09] Speaker 03:
the best statement that we should look at in terms of evaluating what is the legal impact of this retroactive conferral of a CW one?

[00:30:22] Speaker 01:
That is an accurate recitation of what a CW permit allows you to do.

[00:30:30] Speaker 03:
Thank you.

[00:30:31] Speaker 01:
Your honor, I do have a citation for the Li Ping Ping Zhang case.

[00:30:36] Speaker 01:
Yes, thank you.

[00:30:38] Speaker 01:
It's a 454FAPPX591.

[00:30:44] Speaker 03:
F what?

[00:30:45] Speaker 01:
It's unpublished.

[00:30:47] Speaker 03:
It was not even cited in your brief, but go it again.

[00:30:51] Speaker 01:
It's 454FAPPX591.

[00:30:59] Speaker 01:
Okay.

[00:31:01] Speaker 03:
Well, we'll take a look at it for whatever interesting value it might have, but.

[00:31:06] Speaker 01:
Thank you, Your Honors.

[00:31:17] Speaker 00:
On the timeline of the status of Mr. Yang's wife, it's in the second volume of the ER on page 92, paragraph nine.

[00:31:26] Speaker 00:
Towards the end, it says on January 22, 2024, USCIS is denial, granting her CW1 status extension and apply retroactively.

[00:31:39] Speaker 00:
And the indictment in this case was filed in February, so the month afterwards.

[00:31:43] Speaker 00:
So that would be the timeline.

[00:31:45] Speaker 03:
And then how do you square that, though, with the scope of the visa, which does not permit a CW1 visa holder to leave CNMI?

[00:31:56] Speaker 03:
or travel outside of there, including to Guam.

[00:32:01] Speaker 00:
So that's the part where I think once she does something that's inconsistent with the conditions of visa, then she'll be in violation.

[00:32:11] Speaker 00:
But I think going back to the statue, there's some mentioning of the type of aliens that are being transported.

[00:32:19] Speaker 00:
It doesn't say the alien, it includes alien who have violated their condition of the visa.

[00:32:26] Speaker 00:
And I see that time is almost up.

[00:32:29] Speaker 00:
If I may just say briefly something in response to the government's argument.

[00:32:34] Speaker 00:
Thank you.

[00:32:35] Speaker 00:
So the government says there's a limiting principle.

[00:32:38] Speaker 00:
They're not going to prosecute people for transforming people to go buy groceries or do something like in their everyday life.

[00:32:46] Speaker 00:
But that's something about their discussion.

[00:32:48] Speaker 00:
It's not about the statute.

[00:32:50] Speaker 00:
They still haven't pointed to anything in the statute that makes them make this distinction based on their position.

[00:33:00] Speaker 00:
anything an unlawful alien does, unless they're going to report themselves to the authorities, it probably can be viewed by someone as inference of their own unlawful state in the United States.

[00:33:14] Speaker 00:
That's all I have.

[00:33:15] Speaker 04:
Thank you.

[00:33:16] Speaker 00:
Thank you.

[00:33:18] Speaker 04:
Thank you.

[00:33:18] Speaker 04:
Is it Mr. Nye?

[00:33:21] Speaker 04:
Thank you, Mr. Ney and Mr. O'Malley.

[00:33:24] Speaker 04:
Thank you again.

[00:33:25] Speaker 04:
Appreciate the oral argument presentations here today.

[00:33:28] Speaker 04:
The case of United States versus Yang is now submitted and we are adjourned.

[00:33:33] Speaker 04:
Thank you all.

[00:33:34] Speaker 04:
Thank you, Your Honor.