who was brought to this country by his mother when he was fourteen years old three years later he was arrested for breaking into empty cars with a friend and pled guilty to burglary then without notice to his mother or any other responsible adult he was transferred to immigration custody and deported his mother only learned what happened to him when he called her to break the news from mexico this deportation violated due process because the government failed to notify mr  known u s resident mother before finding him deportable and expelling him from the country there's no regulation requiring her to be notified there's nothing that's right there's no regulation and why should that be within the concept of  process for someone who's not a citizen oh well i mean that the right to notification goes back to the supreme court's decision in goal which said that a fifteen year old facing the juvenile delinquency proceeding had question because of the awesome consequences of a delinquency finding which was confinement in a reformatory until age twenty one and deportation is is probably the second most severe consequence that can be imposed on someone in our judicial system after criminal punishment and in fact the supreme prejudicial so she could notify his brothers mother was here illegally or so but that's not in the record actually we don't know what her his mother's immigration i thought was part of what i read in the record yeah or the briefing at least i don't i don't think that's right your honor may be mistaken but regardless he gave the immigration officer his home address so it would not have been difficult for the government to send written notice to his mother at his home address and you know i think it's a safe assumption that a minor is living with their parents or i mean with the district court in students case required was that before a minor consented to voluntary departure before someone under eighteen consented to voluntary departure which is a less less harsh sanction than removal they had to have mandatory phone call with a responsible adult outside the government and  that the immigration officer checked on mr meza included the correct one thousand nine hundred four birth date the treasury important records list twice pages two fifteen to sixteen of the appendix the immigration and national naturalization service is own records list at once that's page two to do further inquiry to confirm whether or not mr meza was a minor and should be entitled to the right a credible notification this is the exact situation that the ninth circuit address in the juvenile male case so in that case you had a mexican national who gave a birth date that made him look like he was eighteen but the government had records showing that he was actually seventeen and the government just went with the eighteen birthdate and the ninth circuit said you can't do that when you have a reason to believe that the person might be a minor then you need to go do more and confirm they didn't know what the correct birth date is there's a conflict in the evidence on that that's right so what the ninth circuit suggested that when you have a conflict like this you can get in touch with the parents and that can confirm or refute the birth date or you can just check with the consulate to determine whether or not the person's a minor or not but still be assuming that you should the parent should have been notified the prejudice which you claim is that he it was definitely deportable got a question about it well he went back it was not here with permission but he could have sought voluntary departure and well like what that's the point the only the only pregnant she has here is that he could have gotten or so voluntary departure based on his record here as as a deadly and there is no way in this case that any immigration judge would have granted voluntary departure this bad i respectfully disagree or honor the record shows he has one conviction for getting in a fight one conviction for breaking into empty cars and then there's an allegation we get a gang affiliation but then we hear a couple of  united states from the time of entry until that time proximately three years and what he did so he's a minor in the united states for three years and he's never been to school yet he's been working he was getting paid six dollars an hour as a labor a job that had already recognized job was going something off the record that's true and we cite in our brief three cases from the b i a reversing denials a voluntary departure in comparable circumstances one where the person had a officer wrote in the notice to appear that he was a self admitted gang member we don't and we don't know anything more than that but you know these cases indicate he's been a case is that he was there you know that doesn't count pretty and it's certainly a negative equity but as against that he was brought here by his mother when he was fourteen you know he had family ties here he spoke a bit of english she was working and he had to i would say not super serious convictions on his record and nothing to suggest in gang activity certainly and you know it when you have  charges and that and the court said that he'd been in the country for a while and had family ties so my point is that these are cases where the b i a reversed and i j denying voluntary departure and they're at least comparable to this case and all we have to show is that there's a reasonable likelihood that he would be granted voluntary departure not that he definitely would have been granted voluntary anybody should find one or two or five cases nationally that rises to the level of reasonable i'm thinking well given that i just have so much discretion to a single one you know so you know what we've shown is that despite all the discretion they have when they deny voluntary departure because someone has a serious drug conviction that's wrong if the person is under eighteen or started person was eighteen at the time of the conviction so  cases teach us is that use is a powerful mitigating factor when you're weighing whether or not to grant someone voluntary departure and it should have been granted here and in fact the district court committed it as a real area here when it said that he one of the reasons he wouldn't be granted  departure is that he was unmarried and had no children well that's that's the condition of being young and in fact had a positive equity not a negative one let's go back to the the use issue isn't it the case under current case law that minors of certain age similar to your clients age are capable of waiving important constitutional rights read over even already even even minors who are yes citizens it is not the case that minors cannot wait any right  up which constitutional rights can minors waive under current case number and a rights ok anything else their right to appeal their right to a jury trial and the right to challenge the initial custody and depart ability to time ok so let's start with miranda your right to self incrimination yeah that's still a minor a minor can admit to committing a first degree homicide or multiple first degree homicides can absolutely if you talk to the police despite your right not to you might give up incriminating evidence and that might lead to a prison term or not it might not you might give not incriminating evidence it's sort of a preliminary waiver but when you waive your right to challeng removal that he gave up any right to challenge that deportation order he gave up his right to appeal it and it resulted in him being expelled from the country three weeks later so you know when you just consider what processes do you have to consider the private interest at stake the risk of error in the burden on the a private interest at stake is much higher in this context than it is in miranda the burden on the government is also lower in this context the government has a legitimate interest in getting people to waive their miranda rights and investigate crime and you know stopping to notify the parents would put a real burden on the government but that's not the case here all they had to do is keep mr mazur in detention a bit longer and then notify his mother and see what happens next as for the right to appeal in the right to have a jury trial you have a right to counsel in those situations at point of counsel so in that case you do have a responsible adult helping you make these big decisions mr meza was all by himself seventeen year old in immigration custody hadn't spoken any responsible adult outside the government and he gave up his right to challenge  him return returning for five to twenty years and if you think about it parental notice is the most important right a child can have anticipate my friend is going to talk about whether or not a minor can validly waive their right and knowingly and voluntarily waive their right to challenge their removal but criminal notice is broader than that mr member couldn't even exercise the rights he did have without parental guidance for example mr meza had the right to an attorney but how is an adolescent supposed to figure out how to link up with an attorney how to get the money to hire an attorney without a responsible adult to help unfair and violated the defendant's to process rights the district court's ruling can be infirmed on two separate grounds number one that the underlying deportation proceeding was not fundamentally unfair if the to reach that determination we don't need to consider prejudice if the court were to find that it was fundamentally unfair there's another requirement a second requirement that he demonstrate prejudice here there is no allegation that the defendant did knowingly and intelligently and voluntarily waive his right to challenge his deportation proceeding this so claim is that the government did not notify the parent of of the of the alien who identified himself as being eighteen years old before proceeding and accepting his waiver to challenge his right to deportation that does not violate due process as the district court found it was not fundamentally unfair then he lied to the agent he represented that he was eighteen and under the circumstances present here the agent acted reasonably and relying on that representation but the gist of it that he lied you're putting the their majority i should say do not have a well developed brain as too many things that adults have and that they have the right to have read told notification so the fact that he lied proves the reason why they have parental notification in the first place well i would disagree with that your honor here this this defendant was one less than one month short of his eighteenth birthday he had just been prosecuted as an adult for burglary he  an adult county prison but you take it over the fact that he was dying get you take he factually was not eighteen the agent did not just reasonably accepted his representation that he was eighteen that's the court's findings are unassailable in the fact that this was a knowing involuntary waiver that saw a complaint is had his mother been contacted that she would have advised him to do something differently but the only senate they can identify that would have been done differently was that he may have applied for the right to voluntarily depart but that does not establish that this is a due process violation if you go back to the tars the torah's case for example there they found if we if it that it was not a fundamental defect when somebody was effectively deprived of the right to apply for discretionary relief the district court here found that as well and said there's no fundamental defect here because the only thing that they can identify as potential prejudice from failing to notify the mother is that he was denied the right to apply for discretionary relief torres then said torres held unequivocal e that that was not a due process violation but we have to take this one step further because the complaint here is that the procedural defect is the failure to notify the mother what would the mother have done the only thing we can identify that would have changed it possibly change the outcome of this proceeding is that your incarceration in a state i won't use the word incarceration your commitment to a state institution for a number of years is the equivalent of a quibble and a felony if it's a criminal felony prosecution call made it clear that the reason that proceed due process procedural protections that apply to adults should be extended to juveniles if they actually recognize that a juvenile could waive the right to self incrimination which means that they could as in the michael see case of sixteen and a half year old confessed to first degree murder he was allowed to do that even though he had asked to consult with his probation officer they continued the interrogation they found that that interrogation was knowing involuntary under the totality of the circumstances test that juvenile had not contacted his parents and there was no suggestion that that was required in order to accept that wa r now as a result of all the juvenile delinquency act was passed and the the reason a juvenile male really has no impact here the two thousand and ten ninth circuit decision regarding the require the parental notification requirement the statute requires parental notification it explicitly states remember this is when a juvenile as arrested and facing a criminal charge yes it will be process through the juvenile juvenile system and not through the adult system but it's a criminal charge and as a matter of fact in juvenile male the criminal charges that he was smuggling allianz into the country he happened to be illegal illegal alien but there was a criminal aspect that case they applied the juvenile delinquency act and they said this requires parental notification they and if they didn't do it then that's the end of it that is a violation not due process they went on to consider prejudice would been a juvenile male was the juvenile male confessed and then the court didn't say that's the end of the matter that this is a due process violation he said he has to show prejudice and that's exactly what we have here he has to show prejudice so that the juvenile delinquency act he says are very different there are statutory requirements there quentin notification there is no evelyn in the civil deportation context yes it is a dramatic consequence in the fact in effect you'll be removed from the country but that does not mean that that right extends here so that without a regulation a constitutional requirement if a juvenile can waive the right waive their right to incriminate themselves in a mugger without first having consulted with a parent or a parent been contacted certainly they can waive their right in the deportation process without parental notification where the waiver where parental notification perhaps not parental notification but where the way the would have been found inadequate because let's say they had a fourteen year old not a seventeen and a half year old who the circumstances say you know the circumstances relating to the waiver so that he did not have the ability to waive those rights or he didn't understand the fact there is nothing in this record his right to explain to him in spanish he although the judge found much of his places aging fargher wrote down claims claimed gang member or known gang member he said that the reason he was sent in to interview this person from based on looking at the records he had no independent recollection was he was of assigned to the chicago violent tank task force a gang task force that dealt with immigration offenses potential immigrants and so he was actually believe that he was sent there to interview the individual the judge noted the gang affiliation i believe and i will i think the judge made a finding what the judge credited agent vargas testimony record created by agent are the contemporaneously with his interview of the defendant stated that claims illegal alien mother and then it has his mother's name an s a usa which is suspected to be in the usa so that was the information that was know was that she was there legally there is no representation on the on those records that he that the defendant told the told the agent that he came into the country with his mother that all came out twenty eighteen at the hearing that he said that he said i came to my mother to the country with my mother at that time so what shows up in what appears in the record is that he had an illegal alien mother residing somewhere in the united states that his father was still in mexico  have no obligation to reach out and notify a parent even a parent or a responsible adult even when that that child understood the fifth in a circuit held you don't even have to do that when you have released that that child or that juvenile to the custody of that at all the regulations only require notification of an adult or another couple a parent or another comparable itself if the child's under fourteen but the proceedings at the immigration service follows itself they did not reach out to the mother of course because they didn't know he was understood it one thousand but there's also nothing in the record that says that they would have reached out to the mother what i what i was told and again this is not the record and the court may not consider it was that they would not have or whether to release him to a responsible adult would have made efforts to find him i note that on a practical level and we are talking about due process here is that this defendant by the time they went through that process would have been eighteen he was to twenty six days short of his eighteenth birthday so on a practical level maybe they would have taken that course of action but that's not a violation of due process this has to violate his due process rights and that means not only does he have to show the violation but that he was prejudiced by the violation and that's where he again the district court made findings the findings are a very comprehensive he would not he had not demonstrated that there was a reasonable likelihood that he would have been granted voluntary departure whether we call it he had to show that he had a reasonable likelihood that he would have been allowed to self to park he was a good candidate to self the part that's what that means and  defect because again we're talking about a discretionary right here and not anything that rose to the level of the due process deprivation went on to consider whether he was prejudiced by the alleged defect but  counsel and sent counsel to represent him to say you should apply for voluntary departure that's the only possible relief from deportation that he had as a clear that the waiver that he signed the explanation  definitely advised the defendant that he would not be able to avail himself of discretionary relief whether it included that exact language i would have to check the record i know there's no allegation that it was defective that the the waiver was defective on that basis i mean the district judge considered whether he weighed not only his right to challenge the deportation put to seek discretionary relief and found that the waiver was this isn't a case like there's a lot of cases out there where there's a failure to tell the individual usually in front of an immigration judge they forget to say by the way you could apply for phone terry departure and in those cases that that's not this case the judge he was adequately advised of his his right to seek voluntary departure so that we just sum up by saying you know it's the government's position this is not a fundamental defect it did not violate due process to tell of the of the circumstances and finally that this court could affirm the judge's decision on the issue of prejudice alone thank you  the key case from this court on the issue charles well held that when an immigration proceeding violates due process and as a result the person misses their chance to seek discretionary really that is prejudice and in fact every court to consider it has said that  that's on page three sixty two footnote seventeen so for the prejudiced standard i hope this court look at charles well our juvenile male my friend hold on to the charles rule that we said that the proceeding still has to be rendered fundamentally unfair or right so what charles well said is that if there's a due process violation during the proceedings and as a result of that by a lation the person misses their chance to seek discretionary relief like voluntary departure that makes it fundamentally unfair and that's the standard ask this court to apply here and that's the standard of governance well that but that depends on how our prejudice adele's what charles bell said is that is that missing your chance to apply for discretion i really put and seventeen this in your chance to apply for discretionary relief is prejudice and my says otherwise but charles wells the governing precedent missing the chance to apply for discussion relief is prejudiced even if a finding is made that the discretionary relief would not have been forthcoming you still need to show a reasonable likelihood that you would ha mean you could have glossed over the gang membership but look at judge circs opinion and when there's a finding here in his opinion that your client was a self admitted member of the been some affiliation with that gang so how do you get over the prejudice hurdle that the fact that he was only seventeen when he came here as a child with his mother that you know his criminal record was not particularly aggravated in these decisions show that even someone with involvement in a criminal justice system that's essentially outbalance by the fact that they're young you know my friend talked about a juvenile male case and she distinguished it because she said that's a statutory case and that's true but that case turned on the logic of parental notification which is that if you're too immature to navigate legal proceedings on your own that means you can't waive your right to criminal notification by misrepresenting yourself as an adult and in fact the juvenile delinquency act was enacted as my friend said in order to implement the supreme court's ruling goal which was a constitutional case so the juvenile delinquency act does have a constitutional basis your representative says that under due process your client has no right to to a parental notification under under the age of eighteen process and then when you're trying to decide what the age limit should be the traditional age of majority is eighteen the immigration and nationality act describes minors as people under eighteen the immigration regulations define a juvenile with someone under eighteen the print on notification cases that we  involve adolescents between the ages of fifteen and eighteen has been as a sixteen year old girl is a fifteen year old for a shot as a fifteen year old and the supreme court's decisions and roper and graham teach us that adolescents are still children in many ways they  still are impulsive and reckless and irresponsible and that's why they need adult guidance that's all true but what do you have in the record to show that your client's waiver was not knowing involuntary is there anything well to boards or just sort of the d understood that by signing this waiver he was going to get expelled from the country he might have intellectually understood that and just thought i want to get out of detention as soon as possible but that be quite an irresponsible decision and one that's indicative of youth and so we want to parent in there but aside from the voluntary knowing intelligent issue he was not able to exercise his rights in this proceeding because he was under eighteen he couldn't get the money together to hire a lawyer he couldn't even begin to understand how to get one because he's a minor the government says that a fifteen year old can waive their right according to the government's theory to challenge their deportation you know in that circumstance i can't imagine how a fifteen year old would begin to be able to exercise their rights so you know i don't think they can voluntarily knowingly and intelligent way of their rights but even aside from that parental was unreasonable given that every record the officer checked showed the actual birth date and the by i graphical information is critical for the agent to look through when they're processing someone for deportation they've got to make sure they have the right person and so you know given the contrary evidence here  not reasonable for the officer nick thank you mr chairman thank you as we queued for the excellent argument in brief it will take the matter under advisement