trial that lasted a day the sole issue with regards to this case is whether or not the district court erred in allowing the government to use the underlying deportation with regards to thousand and one and let's back it up a little bit further my client was a born in mexico at a early young age and was brought to the united states by his parents in two thousand and one he was arrested arrested and again he returned in two thousand and seven and was deported again so there were three main deportations that were involved with respect to this case with respect to the two thousand and one the appellate seiko issue as to its deportation and what occurred at that level the issue becomes surrounded them around with regards to the deportation that occurred in two thousand and six at that time he was interviewed by an officer on the issue whether or not he was seeking or would seek asylum within the united states he had made a claim for asylum but the immigration  officer in the immigration officer denied that request however he had a right to have that hearing or he requested a hearing to be set before an immigration judge with regards to the  officers determination a hearing date was set i believe in the radio texas prior to getting there or being transported there he was deported again that he did not have his day in court sort of speak with regards to the deportation if the two thousand and one order was around and does anything else matter since he was not even permission to return after being deported just matter how his where there possibly be any purchase because there's at least one valid removal or deportation order and he's back in my country illegally and even if there were ten that were no good scattered in between i'm not sure where that gets him yesterday because the point that i was going to make just with regards to two thousand and one there wasn't an issue with regards to him seeking asylum he didn't have that fear but the fear arose in two thousand and six there was a change between the deportation order that occurred in two thousand and one versus the deportation order to if he say anything in two thousand and seven let me pick him up about fearing being returned to mexico he did not your father should surely have said something at that point judge with respect to that issue i always find it interesting in terms of the short answer is yes by the bus judge in terms of how he would have perceived his orders as what occurred in two thousand  he seemed to be placing the onus on him in bringing up this issue well i thought that's it that's not unreasonable in an asylum case to say don't send me back there are they're going to torture me they're going to persecute me they're going to do something to me because i'm indigenous because i'm tall because i'm something correct or rather how well or but what occurred in two thousand and six where he believed he had at least made a claim and that he had a right to have a judge look told him it's just interesting that into that in two thousand and seven just one year later that he couldn't utter those words i'm i fear going back to mexico and if you can't make a claim in two thousand and seven it's unlikely that even if the government were inclined to correct its mistake in two thousand and six that he would be entitled to asylum so it's sort of on the merits there's just there's no there's no there there there's no there's no equity and he's been in and out of the country several times he was never able to tell them before articulate that if you're going back to mexico an that's two thousand and one and that's all the government relied on was the two thousand and one or yes or however it's posed position that with respect to my beliefs doesn't that when you have a situation like this which i think is a little bit different than most where you not have any fear or concern about being returned to my home country i mean it's more than the fact that he didn't complain he affirmatively said he had no fear so why what is the government when he comes back in two thousand and seven and says i don't have free or so at bass the record suggests that he had a period of you know a year or some small period of time when he was concerned but he wasn't concerned earlier and he wasn't concerned later by the time the order came down a year later i understand what the course position is but in terms of i guess his perception of the system as a half a change to him the year before he had put in believe u s embassy in mexico and say i i fear persecution in mexico i mean i want to apply for asylum he can do so at the border and say i'm here seeking asylum and they will treat him very very differently if you can if you can't help himself to that  extent i understand begins with the court's position as i just in terms of the develop with respect to this case i place the onus with regards to the government i agree that he did make an affirmative step with regards to two thousand and seven but has always been our that with regard to two thousand and six he had a right to have that that accomplished and what the essentially did was in terms of prosecuting this case is used that two thousand and seven deportation proceedings within just totally jump over the two thousand and six and went back to two thousand and one why why he didn't write the check the right box with regards to this silence that it was a mistake that he made but i rest on the fact that i believe that a two thousand and sixteen believe hear from the government good morning me a fisa court my name is jane mclachlan i'm an assistant united states attorney from the district of arizona with respect to this case the government urges this court to affirm the district court's denial of the motion to dismiss the indictment because judge campbell correctly found that this defendant failed to satisfy the statutory requirements for collateral attack under section of a u s c thirteen twenty six now at the outset i'd like to clarify  couple of things for the court first of all we are certainly dealing with three separate physical removals of the defendant from the country but they are not all procedurally identical the two thousand and one removal was an administrative expedited removal under eight u s c twelve twenty eight b that can only be accomplished because the defendant was at the time an aggravated felony he didn't have the right to see an immigration judge for that proceeding and again counsel noted that the defense waives any challenge to that removal the two thousand and six removal was a reinstatement of the two thousand and one removal and this is a key distinction because this court ha sweeping changes to the immigration and naturalization act to make it easier for immigration officials to quickly remove people who had already had their full procedural rights and this defendant got that in two thousand and one so in two thousand and six immigration officials reinstated the two thousand and one order and reinstatement are done under any litigation on that process to thank you your honor and so in two thousand and seven it was again reinstatement of the two thousand and one order with different procedural requirements all of which the defendant received in this case and the two thousand and seven reinstatement of the defendant's procedural rights are clearly set out in  r two forty one point eight a and b verification of identity obtaining prior order of removal determination that he has reality illegally and written notice to him that he subject to removal and given an opportunity to make a statement and if the court looks at s t r seven in particular you'll see that the defendant was given an opportunity to make a statement and he did not wish to contest the two thousand and seven reinstatement the next point i to a to and b to b one as an aggravated felon he's not ever going to get asylum he couldn't in two thousand and six he can't do it now it's because he's an aggravated felony the only remedy available to of removal and whether that be under cat or under the reasonable fear determination the the thing the remedy that he could get is just basically a stay of removal to the country of mexico that's what he was claiming in two thousand and six and that's what he did not get an immigration judges review of so the government dismissed the case because of that and sent him back to mexico that's when in two thousand and seven he affirmatively sa at s u r eight that he didn't have a fear of attorney when we did not prosecute based on that he dismissed that case when he came back yet again and committed another couple of felonies and was caught in the department of corrections we prosecuted him based on the two thousand and seven reinstatement when he had said that his fear had abated even if one gave him the large benefit of the doubt and said that his claim of fear was plot plausible that fear had clearly abated and the government's immigration officials were allowed to rely on it in conducting the two thousand and seven reinstatement with that list of rights that were available to him under cause the government to have to re adjudicate a claim by breaking the law again that that shouldn't be countenanced by the court and so we're asking this court not to permit the defendant to do that and finally this defendant with at the time that in two thousand and seven when this was reinstated or in fact two thousand and six he had nine felony convictions and at least nine mr manners he's acquired several more s then he's not going to be able to establish the kind of prejudice that this court has found is necessary in order to bring a collateral attack in an illegal reentry proceeding again he didn't have any more fear the fear apparently abated within that year but fundamental unfairness requires first that he shows a violation of due process and we believe that he can't do that let's you but even if this court were to find that he had had shown some violation of due process he still has to demonstrate the resulting prejudice and the court has found that this is what's called a possible ground of relief ground for relief from deportation and that is  freedom would be threatened in mexico due to being in a protected category it's a defense burden he'd have to prove it's more likely than not and as this court is probably aware for withholding the standard is actually higher than for asylum that that that the showing has to be more specific and the fear has to be better grounded then just for an asylum claim and if the court looks at this defendant's claims in the record they are very vague and i refer the court to e r fifteen to seventeen which is where the asylum officer which is of course confusing because the defendants ineligible for asylum but the person's title is asylum is threats from other inmates in the united states that essentially facey him in mexico they will harm him and also fear that his status as as a deported mexican in mexico might cause him to be persecuted there and this court has specifically found that neither of those claims constitutes a possible ground for relief because essentially those are cognizable social groups and i refer the court to the re s nia case in the government's brief regarding threats from criminals and that one had to do with gangs and guatemala and was considerably more specific than this defend its claims and also claims of fear minimally plausible i'm sorry his claim of a violation of due process his claims of prejudice would have to fail because his criminal history made it even less likely that an immigration judge would have picked the tiny window of relief that he has because of course as an aggravated felony he's also ineligible for withholding except that he got only three years prison on the underlying aggravated felony if he had gotten more than five then the immigration judge wouldn't even be discretionary he can't get withholding but this defendant got only three years so an immigration judge could exercise discretion and give him withholding and we would argue that somebody with his extensive lengthy decades long criminal history was not going to get that discretionary relief from the immigration judge so for all of those reasons unless the court has any other questions the government will or judge i just want to point out that with regards to the argument that the united states made that if there was a pause the only for relief for mr ross and that is with respect to the case that he should have been a title to it