removal and mr moreno top his case and i'm going to talk probably overlapping lee about the first two prongs of the test under thirteen twenty sixty because that's how the courts have treated them and i think it's a good reason for that the first two prongs are of course exhaustion and the deprivation of judicial review in this case we've actually got a fairly recent precedent trachsel was part of that panel just back in two thousand and fifteen it was a civil matter and at the end but the court was very clear that the expedited removal process that was used in mr marino toppy is case does not provide any meaningful opportunity for an administrative remedy which is what mr marina ta review at that point would have been meaningless and mr murray to top each case because he didn't have the opportunity at the stage of the administrative stage to develop any kind of the record and the fact that he didn't have the opportunity meant that he could address the issue for the first time before the court before court in mr marino top his case he wasn't even aware of the issue well that's a different problem the fact that he wasn't prescient about the existence of the dea he could have been he could have your honor but there was no meaningful opportunity or if he had exercised the right to judicial review there would have been no record of anything all the court would have been able to do at that point was to say there was no meaningful opportunity for judicial review or no administrative remedy as you understand why there  was no opportunity for mr marino tapia when he was in removal proceedings to develop a legal issue but that was the same problem with it right internet in the court said the exhaustion prodding and the judicial review prongs would be excused right and then we proceeded to hear the merits of his case why couldn't your client because in the situation that he was in there wasn't he didn't have the legal issues in front of him the court couldn't have there would have been no record for the fourth circuit to hear and i would also argue that under thirteen twenty six d what we're talking about is exhaustion of administrative remedies not exhaustion of judicial remedies this is not he's not required to exercise every of vailable provision under law that could have an executive branch it's essentially a law enforcement and counter in the civil context you make your understand your point here so we respect you saying that because it was purely a legal question there was no need to develop the record our court decided the merits of case right at him was a civil matter that was a removal case this is a situation where if the question is did he have a full and fair opportunity to develop that in the context of a criminal charge so he  remember he this is a case where he never saw his written plea agreement and i think the fact that it took intel after he had entered a plea in a criminal case in federal court for this issue to be ferreted out and come to light puts the  the finer point or puts in higher relief the issue of the lack of process it's not just that there wasn't a failsafe somewhere down the road where he could have been in front of a judge there was no meaningful way for him to have brought this issue to light i mean what actually happened between my client and me which was i said hey you know we can't really attack you're only prior conviction you signed a plea agreement and i took it out and sure enough his signature was well the point is he didn't understand the legal consequences of that  gone through the expedited process but in contrast to a normal removal proceeding i mean it's striking there is you know you get an aisle j a hearing and you get an appeal to the board of immigration appeals my guess is and this is purely speculative but had he gone through all of that administrative process there would have been a pretty thorough record in front of this court by the time he sought judicial review if you saw judicial review there also would have been an enormous amount more time for him to develop that record and i think that's critical because way things actually unfolded he needed all of that time and then some to get this to bring this issue to light and if he had been able to do that in the immigration context i don't know if that would come out or not because he wouldn't have a right to counsel so he wouldn't necessarily have a lawyer but he would have at least had the opportunity retain immigration counsel to have somebody look into the immigration the basis for his removal and that at the immigration phase to develop a legal counterargument and to raise and i think this is important too in his case which was not judge or the fourth circuit upholds the matter or finds that he has the right to relief is a discretionary matter and we have no idea how that would have played out but the fact that he had potential remedies now i'm skipping ahead a little bit maybe to prejudice but i think it also speaks to the administrative exhaustion and to the judicial review component it just shows how much was riding on that and how much lighting that whole process affected the outcome of his case and you know starting really with the state process i mean here's a guy written plea transcript and then there's the transcript of the actual hearing and it's clear from the record that that full discussion of all a lot of those things that are contained in the plea transcript is not on paper in the in the actual  through meticulously and says do you understand this you understand this do you understand this the plea actually colloquy that took place which is not is the burden is on of the judge there the government made this point we don't contest it and that is not constitutional violation by itself for the judge to fail to do that but it is an opportunity to cure some of that stuff so if the judge makes a very deliberate entry of play at that point some of this stuff can be fixed some of it can be cured and that didn't happen then hey sorry i feel like i'm just getting a bit mixed up so what's the b i supposed to do about that i mean is that when they're doing a deportation proceeding do they need to go get the paperwork from the original conviction and look it over i don't understand how these two things fit together and my larger concern is the sort of colloquy you were having with judge diaz goes to my real concern about this case which is that these factors and mendoza lopez i mean as you yourself are saying those are about something else that's about sort of a procedural due process problem was you know was the pro procedurally defective due to foreclose judicial review but you're raising a different kind of claim than any of these other ones your claim is about the underlying conviction itself and i don't understand how how that even fits under the thirteen t factors your honor it is different and i couldn't find frankly a case on all fours with this but i think it's identical in terms of the ultimate question which is is prejudiced is should somebody who has been through the process that this person has been through be subject to a criminal sanction based on that process due process claims act or out of fundamentally unfair to sanction him given that they can be that's exactly right and i think the reason i refer back to the state court thing is the origin is not just because that's where the  headline but it's not really the substance in some ways of this case and predisposed to be a corrective to what happened in some ways to mr marino tapia but what what we're really talking about is a fundamental failure of that process so what happened to him somebody who has never seen their written plea and goes through not one not two but three step process he's should that shouldn't happen now didn't the supreme court hold him is it custis that when it comes to substantive due process claim it's just totally unfair to write you know lies and based on a conviction that has been shown to be constitutionally defective the only kind of problem we will recognize in the underlying conviction is i think there was just an absolute denial of right to counsel relation gideon but that kind of structural problem well your honor and the claim here though is not simply a fifth amendment substantive due process claim in the federal court the claim here is what are the criteria for thirteen twenty six the collateral attack and does he meet them and so i guess i think if i'm not mistaken what judge hears what you're asking is is under prejudice what effectively fall under prejudice and where is that really suggesting is that he doesn't need thirteen twenty sixty because those are about a procedural defect in the deportation hearing itself so that what you actually have is a substantive due process quite apart from those factors well i think that the i well that's a i think there is an argument under the fifth amendment for a subst process claim i also think he meets the thirteen twenty six b because and here's why it's not just a generalized broad brush you know it touches the fifth amendment and therefore it's all infected he actually means each individual part of that problem and part of that is the expedited process i but if we are going to say this process is what qualifies under thirteen twenty sixty and we're ok with that and this removal can't be collaterally attacked that's i think that's problematic if that process is in fact arbitrary and capricious i mean this is a guy are relief at the state level was is this really a pretty a claim a six member claim or is this really a fifth amendment claim and to me a person whose written plea agreement was never reviewed that certainly supports a sixth amendment argument but i also think there's there is an argument to be made that going through an entire police colloquy based on a written plea agreement that the person never saw until two thousand and twelve when they were charged criminally in federal court raises substantive due process concerns and it raises them not just because of that initial violation but because that carries over it has this cascading effect into the administrative process which is incredibly brief and in mr moreno top is case was actually abbreviated he was he was removed only eight days after the order in violation of the s o whatever little administrative opportunity he had to develop something was actually cut off and when he was removed to mexico and then gore did say that it was the problem here was a violation of the state court a it's a this is a case that does not fit neatly into a box that we've already opened this is kind of an oddball case both because he had gone through multiple stages of different of a civil and criminal proceeding when it came up and because retroactive application of the relief so nobody is saying please give me the patea relief but i would know reus tourists versus holder which is the ninth circuit two thousand and eleven case in that case the state drug conviction from two thousand was vacated due to a failure to inform immigration consequences that's a obviously civil case an immigration case but it puts its finger i think directly on one of the questions we already discussed which is because that person didn't have the chance to raise it during the immigration process and that it was vacated for that reason this this immigration consequence that they were engaged in the court said it could not be used as the basis for removal so and you know the standard is if anything lower in that context you know the court reviewing that would say it's clear and convincing evidence if the if the government has a burden in an immigration contest and it's not a criminal case the petitioner there doesn't have the protections that mr moreno tapia does so i would say if anything it's a higher level of scrutiny here and just because p d isn't retroactive this court doesn't need to apply to be clear i mean this court doesn't need to touch patea the underlying violation is acknowledged there is no question but that mr marino toppy is case at state court level was defective well the question before this court is ok so he has a constitutional invalidated conviction he has a a expedited review with absolutely no opportunity for administrative review or or an opportunity to develop a legal record before hand and now we have to ask the question can that which is only conviction now vacated can that stand cannot be used as the basis for a criminal charge in federal court and the simplest way to articulate his argument is where that conviction is so tainted and where the process was so defective was so insufficient a criminal conviction a criminal sanction should not be based after deportation right now the conviction is an element of the effects i mean it without that conviction there is no you know there's a there it because that's why the statute that's why thirteen twenty six the exists is because the the on the conviction is resting on the phone without the conviction there is no removal i understand the only basis for his removal trace it back but anyway i think what he was supposed to do right is get the conviction vacated reopen the deportation proceedings and then come back but the issue with that again is that he was not afforded any meaningful opportunity to do that if i am out of time but at want to respond to that question and that's that's the crux of it is the connection between the constitutionally tainted conviction and the lack of meaningful process specifically what is seen as an exception for constitutional defect i know the discussion so far this morning has been on the collateral tack on the deportation order but i want to address as it affects all three issues of the appeal the claim that there is an exception for constitutional defect in his brief on page thirty three the appellant cites the first circuit in luna d s as holding that there is an exception  for convictions obtained by constitutional defect in the context of the guideline enhanced however that referenced does not refer to the holding but to a footnote specifically it's a couple of critical thinkers first that the first circuit did not reach that issue they stated the instant case does not require us to decide whether allowing the guideline enhanced spent in three limited is court's examination of the underlying claim of infirmity would show that there is no constitutional defect referencing the a t f and the lynch case in which this court had the opportunity to different context the elements of the state offenses presented it legal issue i would argue that this court can't simply be limited by how the order of acre is caption by the state court that is looking at it for a federal purpose and for that reason and the documents are in the record that the court has the opportunity to look and see that today is not merely a side issue fifth amendment claim at that point in the reply brief it's states that there are a host of other rights which the if the appellant did not know about but reading of the record there is  direct references to constitutional rights involved and throughout the argument to the district court in this court the only violation cited is they were trying to defend its opening brief he states that this exception and this case fits squarely into the exception expressly carved out by the first circuit again that reference is only a footnote and not a holding and then states that this court has found that this court follows luna d s and has repeatedly held that there is an exception for constitutional violations and for that for that premise he cites two  this on page one seventy one of the joint appendix when she stated that it's in a footnote basically it's a throw away the council time just to sort of try to sharpen the simple little bit for me what if what if the state m a r order what if this had been a p d f violation what if the state court had found that he was not he had no right to counsel he was not provided counsel during the plea proceedings at all he was on counseled then what well the court because that i know it would be how do you think it should be answered by a completely unaccountable can richen well that relies on and that hypothetical which is different than i understand i'm just trying to figure out what would you want constitutional violation would yes and so because it would be a constitutional infirmity is it permissible to look at that now vacated conviction on constitutional grounds in sentencing going forward does the government have a position on that or not  well it seems that there should be reasonable limits song on the use of those convictions yes your honor but as to those limits that's not yet been developed ok and can i ask i'm sorry but what about the prosecution itself putting to one side sentencing would that be grounds for a collateral attack in a prosecution for illegal reentry if the original removal rested on a conviction that had been vacated for  sorry i'm i'm not being clear everything is the same about this case except the reason the conviction was vacated was because the petitioner was not granted the assistance of counsel when he pled guilty then that's a fifth amendment that would be a constitutional violation because so then would it be permissible to prosecute him for illegal re entry given that the original remove all rested on a conviction that was unconstitutionally a teen i don't i a thirteen twenty six prosecution but but the prosecution based on removal it's not based on the conviction right that's why that's why i think this is actually a hard question but i was hoping you'd have an answer i'm sorry then but let me address that again  there's a penalty provision of conviction in thirteen twenty six b the relates to the aggravated felony conviction and that in the hypothetical posed by the court of an uncountable conviction i don't think it would it would prohibit prosecution for thirteen twenty six but it may affect the statutory sentence from two years to twenty so can i ask you about the impact of at the end in this case as i recall the government to respond to the submission of the twenty a j letter and since you're here arguing the merits it doesn't appear that you're conceding that it's you and resolve this resolves this case can you tell me why it doesn't because i t n involved a determination of a legal issue not a factual and that that raises this question is it a legal issue factual issue of whether or not the defendant was convicted and looking at lewis it looks it not the reliability of the conviction but the fact of the conviction and the determination of whether or not he'd been convicted a factual conviction and states that there was no opportunity to raise the legal issue of whether the crime constituted an aggravated felony because of the limited options on this checkbox but this is really a factual issue and judge he has addressed this in her order on page one sixteen what's what's the factual issue well before the court before i'm sure before the immigration authorities are you have you been convicted is a person convicted of an aggravated felony when he was convicted of an aggravated you're talking about it or you talk about this case yes or yes it's not is not whether or not this is an aggravated it's not a legal issue of determining the elements of the offense and comparing it to the federal law and to see if it's an aggravated felony it's a question of where you convicted of an ag of aggravated felony or not and that's not a legal issue that's a factual issue it's one of the defendant was able to raise to the state court in the motion for appropriate relief and he was convicted and remained convicted until that the conviction was improper at least according to this day court was because there was a violation of his of his rights with respect to advice as to immigration consequences that strikes me as a as a legal question that for whatever reason if you couch it as a fifth amendment violation even though the deals with the rights the duties of counsel to advise on immigration violations under the sixth amendment it's never been clear how that implicates his fifth amendment knowing involuntary and furthermore that notice of intent which is given thirty days after the state conviction thirty days as a notice of intent to remove something defendant the appellate is contesting that he did not know he would be deported that within thirty days he does know and that's by the nature of the notice of intent and does nothing  and judge eagles framed this looking at roberson and lewis as the question presented to the defendant have the opportunity to challenge the conviction prior to the act and he did and he had thirteen more months while in state custody before they re approached him with the same form at which point he waived i think that the bright line the need for the bright line rule is stated in lewis and othe r cases looking at civil disabilities imposed criminal convictions of first circuit and roberson and this court in k have cited by the district court look at the fact of the conviction and to have a question as to the reliability would in this case engender uncertainty as to whether or not the person has to do or has not yet has to comply with the act that's required in this prohibition and and then the violation in that case judge eagles reasoning relying on lewis and robertson we'd say is well founded in that the defendant's position that there are some exceptions here is based invicta and has no it has no legal basis the judge eagles i want to dress the collateral challenge judge eagles found that the defendant did not meet the first two requirements for the collateral challenge  requirement and defend it would argue he had no opportunity to meet that this goes back to the he didn't know he should have claimed this well circumstance to go back to that so he says he tells the hearing officer i haven't been convicted it's an improper conviction and if you say it's a factual challenge and i suppose someone pulls out the record of conviction and says sure you've been convicted at that point the challenge has to be well the conviction may have been look spatially valid but in fact it was improper because it was it was obtained in violation of my rights to have notice of the immigration consequences of that conviction that's a legal question not a not a factual question and at the end tells us that those legal challenges are not can't be petition doesn't have the ability to make those legal challenges in this expedited removal process so why isn't the first prong satisfied here because this is looking at the reliability there's a presumption of reliability regularity with the conviction and judge eagle stated that there's no there was no duty for the immigration officer for instance to advise him that the conviction maybe he should challenge that conviction that that decision regarding  the notice at that stage is not one that's suited for the immigration office is suited for the court that sentenced him but is is rather a factual question yes no have you been convicted and it tends different as it had to do with the legal issue of the implications of aggravated felony or the legal issue not suited but as to the immigration officer looking at the four requirements and the notice of intent is simply looking at have you been convicted of an aggravated felony raises an additional issues for the first time on appeal to the extent this court may consider those i would point two things out he does state as brief on page twenty two that the government correctly states bears the burden of the knowing involuntary the defendant did sign the waiver and that the government offered no evidence to meet this burden but i would point out in the joint appendix page one twenty five when the court notes that evidence is required as such or hearing i'm not sure that we need an evidentiary hearing and further states there wouldn't be any other evidence so i think mostly an evidentiary hearing would be authentication so in effect would waive the presentation of evidence by the government because the issue at that point was the be remanded on those issues for a finding of fact but i don't i don't believe that's necessary  minute one point two was properly applied by the district court that the defendant is not met the requirements to collaterally attack his deportation order and judge eagles did not reach the third requirement of prejudice she knows but states that the test would have been would have been deported had the conviction not been vacated not would he have been deported if he had not pled guilty and that's not an issue addressed follow the footnote foreshadowing certain limited circumstances in which a constitutional violation the conviction obtained by constitutional violation might implicate due process concerned we would stay here it's simply not met because it's entirely predicated on the deal and put the remains of collateral consequence and at this and this time the depend the appellant was charged pled guilty convicted and removed prior to the decision and china is stating is not retroactive has no opportunity to avenge himself if there is no exception as would appear it's only been foreshadowed this court on the novo review would have the opportunity state there is no constitutional layer in looking at all the documents before it  you your honors thank you just real quickly i want to address lewis i think it's a distracting element in the case only because mendoza lopez which thirteen thousand and sixty is based on expressly stated that lewis does not apply to this context to the collateral attack i think there is some analogic applicability of lewis in the guideline context where you're talking about the timing of the of the violation but in terms of the collateral attack lewis just has no bearing on that the nine point two g doesn't include a collateral provision to attack one of the elements and another thing i want to point out is that there isn't a duty in the deportation officer context to raise legal issues or to go behind convictions or anything like that the government correct about that on the other hand there is a duty for an aisle day to inform the petitioner of any potential relief that they would have had and that is actually the source of many violations in the context of the case of the judge harris was raising earlier making the distinction between the underlying conviction being in a criminal process that precedes the immigration process versus in the immigration process itself which is the at the end example so there are there are a lot of duties there are a lot of  protections built into that that would have actually come up and i think judge he has this point is exactly the point that maybe i was in artfully trying to make before which is it is only factual questions and those factual questions are not subject to any adversarial process and the government you know says that this is a factual not a legal issue but that doesn't help the government's argument in my view if if if the if what you're saying is you can only raise factual issues before the deportation officer i think that squarely recommends finding for the appellant in this case because there are clear legal issues that the defendants raised whether or not it fails on them and it's clear from etienne and other cases that those legal issues had no opportunity to be our argument and i do is no legal basis to say as a matter of statute or as a matter of regulation he should have been there but that's part of the point is there is no guidance no discretion no nothing no policy on who gets put into really your honor i would have to think about that i don't think we discussed that issue and for the district court and again that was that i mean that is a matter of sort of your con of immigration  law and so it points again to the fact that the in an aggravated felony context where the person has an enormous amount riding on this and i you know i'm not trying completely to run away from pretty i think stands for the proposition that loss of status is an enormous prejudice that's why the supreme court ruled the way it did and that there is a lot riding on this that something as important as that should not be subject to a process that is either constitutionally tainted or