question i would like to first ask if the request for judicial notice as to file zero three seven one two seven three would be granted in this particular case i believe it's vital to the disposition here essentially there are two issues after the briefing of the changes of the law that occurred during the ca got of course of this perceiving the two issues being first of applies and if it does is it trumped if you will by the doctrine of change circumstances involving true changes in the law first a precedent decision and this court  zero three seven one two seven three i'd like to address the jurisdictional issue first and i think that's paramount in the respondents refits flipflop but i think that obviously is the first issue at stake is  section eight u s c twelve fifty two b one the thirty day limit on files of petitions for review does not apply i would ask this court to extend that same alvarez mara haas doctrine of already previously existing petitions to that same issue here and going make sensitive boys avoids an absurd result which would be the consequences of what respondent is asking in this case also it avoids the constitutional issue of whether there's a due process or equal protection violation turning to the jurisdictional excuse me turning to the rescue to cotonou circumstances conflict if you will the first issue and it's not really spelled out clearly in the brief reply brief but i would think it's noteworthy is that the there is an issue whether or not greg's judicata would apply at all whether these are in fact the same issues now the court or the district court made it very clear that the petition was similar but it didn't say it was identical and did not invoke the failure to exhaust the doctrines that are set forth in their reply brief it proceeded to go ahead and a s expungement eliminates the case as a me as an aggravated felony before the court then its fourth issue and then as a due process violation of the same alleged in this third and then his final cause of action he's es and acted it's clearly states we need a uniform standard for federal law so i would submit that to that extent reza judicata probably doesn't even apply but if it doesn't fact apply in this case i think it's trumped by the new circumstances that have clearly developed in this case we look at noon yes which is controlling precedent and i don't think incompatible with the b s corpus were rules to be that existed before the a the anti terrorist and effective death penalty act basically new in all munoz basically says in essence it is if you go to the court of appeals petition for review aggravated felony alleged to for the court to determine whether has jurisdiction to determine its jurisdiction and the court says no this is in fact and aggravated felony petition dismissed you cannot go back and get your second bite of the apple and he is worthless proceedings and says allege the same thing and that's a very sensible rule makes perfect sense the difference in this case first of all is that the subset of law has changed in the course of this proceeding and what has happened terrorists now when the first petition was filed the argument was this is not a aggravated felony it's been expunged and besides a sentence has been modified under a terrorist comes in and says we need a uniform standard it's a completely different circumstance a different set of laws and since the petition is pending at the time  the by the f b i and that he was convicted of a but this was the second conviction what is that what's the significance of that i think they're mistaken because the previous conviction was put in diversion i think the record clearly shows that in the in the previous petition for review proceeding he was put in diversion in old california diversion where you don't enter a plea now you have to enter a plea but in those days you didn't have to enter a plea no plea was entered so there never was a conviction if that is the only other preexisting proceeding against him not clear on that subject but we can take judicial notice some have that is that what you're saying or what or the he referenced in the be a opinion there is that there was this prior conviction and hence that triggers an aggravated felony under the federal statute where or is it would not be without that other conviction but you're saying that it wasn't really a conviction it was a diversion but how can we find that well it should be i think it's reflected in the minute or is no conviction records are ever produced in this case all we get or try printouts from the court as do the documents so we don't have any charging documents we are clear on what the disposition is as far as the  requires new circumstances to be applied in this case over a student got i see mike i'm sure if you're saying that there are two reasons why it's not off bellamy one because it was not a commit the first it was not a conviction secondly you've got this determining that petitioner is not removable in fact he's already been removed in this case the order of removal became final long before there were any of these changes that the petitioner has alluded to by this court had already ruled that he has conviction was a crime was an aggravated felony and because this court had already ruled that it was an aggravated felony when this court later after this final order had spontaneous so there was no response by the government to either one of them so there would be nothing in the record from the government in either one of those cases are to appeal from the second hey vs was still alive fourteen alive at t life before this and actually no your honor it was not this court issued an order to show cause asking why it should not the second petition the one that you are now all here for should not have been it certainly shows that a final word or was executed in reliance on a decision of this court this court had said he was an aggravated felon and therefore made it i maybe we made a mistake at the time you made it that was the law of the surface of the circuit reinstate or something there was a motion to assume that that motion occurred between december two thousand and four and january fifth two thousand and five because ours came out in august two thousand and four before any of this happened or what is  conclusion about retroactivity and in doing so rely on principles of civil law at one point and i quote the supreme court states nevertheless it has long been to stablish that a final civil judgment entered under a given rule of law may withstand subsequent judicial change in that rule that appears that page three await of the decision so when other words and there are decisions of this court show stating that a final judgment  final civil judgment is undisturbed by subsequent cases regarding that same rule of law otherwise nothing's ever final if we were to say that now because  after we have the government has already executed a final word of removal based on an order from this court if we now say no we can throw that all up in the air because there's a new case there must be hundreds perhaps even thousands in this district this alone of aliens who were ordered removed and in fact removed for possession of controlled substances when this court determined that possession of controlled substances was an aggravated felony to do otherwise to now say no those final judgments are just not final throws everything up in the air and nothing's ever final this court is even said and i cite the case of my bretheren ellingson if subsequent case law which would apply in this case they're simply it is prospective only if the case were on direct appeal then fine you apply the new rule of law however it wasn't he'd already been removed before his arse was issue i do not know the specific basis for the recall the man did i do apologize your honor i do have down in my notes that it was recalled i do not seem like that might be key you couldn't recall it just just from the standpoint of applying a new one and i believe it was actually mr bennett or mr mccarthy then filed saying well he was pro se he didn't respond please excuse it and allow us to we call them i believe that's what happened and i'm sure mr mr bennett will correct me if i'm wrong recalled for another reason it would seem like that would be quite different i would agree that would be a different circumstance and i do apologize for not having that right at the tip of my tongue exactly why this court because i we you know you're over your time and we're going to hear from a reply you know let's give him a minute or so to respond to your argument thank you thank you because he was removed that's she's not really arguing a loss of jurisdiction in this argument she's arguing race judicata she's arguing that there was a final judgment in the case  and he was removed and and now we have a new question and that the prior disposition although incorrect according to subsequent opinion  before he was removed actually so there was number one was decided so it was decided before he was removed by one day going west to mandate recall the mandate was recalled the order to show cause there was a delay in responding that i'd accepted a late filing and if i'm not mistaken i'm not absolutely sure and i didn't bring my entire portion of that file but there may have been also a dismissal in december of two thousand and four for failure to prosecute but it time i was having stream health problems and this may have been one of those cases i just cannot remember off the top of my head but it should be reflected in the file obviously would read would