positions have complicated this appeal but i would like to start at the beginning in the simple place the district court heard when it denied mr castro's car novus petition on the basis that it depended on a new rule announced in party a versus kentucky since party is not retroactive and i understand that the government does not it defend that position they don't defend it even in the alternative because the rule that was new in pretty you is the rule that an attorney must affirmatively give correct immigration advice to a defendant facing a plea decision or sentencing anywhere in the media decision but i thought that they had said the failure to advise where the consequences are clear at least two but there's discussion into dia that some immigration questions are ct right well here there was not a failure to advise the record well your argument they understood it was inaccurate right at us when a lawyer gives erroneous advice about any matter of potential importance to the client that violates the standard of effective assistance under long preexisting law it was nothing new in about that do we have to go to bat for i thought your argument was potentially narrower than that which is whatever the scope of the duty to not miss advise might be it certainly is a duty that applies with respect to a plea yes and if the miss advice would render the plea what not knowing are you saying it's not if even if it wouldn't render it in not knowing plea but it would render it so that we would it seems to me the narrowest formulation of it would be that where the advice would render it not knowing in a constitutional sense that is a sixth amendment violation that would be the prejudice prong of the of the strict not always going at it through slightly ok i thought prejudice would be might he not have pled correct would you saying i think something stronger which is here the plea was not knowing in consequence of the knesset nice we do make that argument but i make it i don't mean to quibble and i don't know that it's important but i would say that was a fifth amendment due process issue not a sixth amendment issue because absolutely which is unknowing does not affect of the way of the rights and is not a valid so that it that's that's guilty plea law more than in effect existence love you get to exactly the same place and in this case in fact there was a third argument which was that there was also a breach of the plea agreement because the contention made in the affidavits from mr castro and his attorney which were under spirit in the lower court is that the united states attorney participated in these discussions and because he was rember mr custer was a cooperator so this is a friendly discussion about the police and how it will go down and how it will be certainly being negotiated between after sarah but they all want him to be happy and they want to have his testimony he winds up being the only one who testifies in this whole conspiracy against the one who goes to trial so the united states attorney participates in the discussion and says this  as we are structuring it cannot affect your immigration to the fifth amendment the fourteenth amendment due process and this is the sixth amendment issue for second what is the status of the fifth amendment issue in this case the client and his attorney isn't that for your point of view the fundamental error the least with respect to your because it is a distinct fifth amendment claim that is the error there's a court makes with respect to that claim he could there be a fifth amendment claim if the defense attorney is the certainly and what is the district court say with respect to the fifth amendment if the defense attorney is the source of the mr nice i think he again conflates it with what he construes to be he's focused too first circuit agrees with the second and ninth of the seven there is a split on whether misinformed advice existed before the dia and survives in well i think you do have to decide but i don't think it would be decided for the first time there's a large body of law from the seventy's that i cited in my brief most of which is about role eligibility which is precisely analogous here to this problem  about that wrong even where there is no obligation to advise at all about parole eligibility to give wrong advice can be ineffective assistance of counsel or render six in that argument problematic if we were to conclude that the district court was right with respect to the six member an issue your fifth amendment issue based claim which he did not address my making clear that that's distinct if he were to then have that clearly in his front center yes and rule for you on it you would not that i know you would watch any such remained to be accompanied by an order that the court is not to consider the evidence that you say that the government brings forth for the first time and in  reply brief but why should our attitude be that it's up to the district court to decide what the scope of that hearing should be and perhaps it would make sense that everything that the district court thinks might be relevant to finding out what actually happened here what was said what was the reliance who said what but what why should the district court be free to make those judgments rather that have us are here circu the scope of that hearing i would say that it's this court's supervisory responsibility to direct to discipline in the litigation process when the government says has the free opportunity to present an affidavit to ask for hearing presents no affidavit from the prosecutor remains completely silent refuses to say whether it is true or not true that the prosecutor made the statements when the matter is before the district court for decision opposes holding a hearing on the subject loses or wins but on an indefensible ground and on appeal wants to change their strategy and come up now regrets having taken that position as a factual matter in the district court and wants to start over the court should express disapproval we cannot have a litigation system be it in criminal cases in civil cases that allows a party to play their cards that way trying to keep their options open to see how things work out we have a chance to present the evidence this is evidence from their own file they say the party doesn't skull he doesn't scan for either side in this case the government evidence in their own file doesn't bring it forward until there are appleby's brief it messes with process it produces a four brief instead of a reprieve appeal and it's not enough to just say oh do i would say to just do whatever you like under that but you know if a hearing is fine but i think the court should say something that says this is not right and there's a discipline to be imposed for not following the system i could reserve the rest of my time for  original clinging to the district court for the issuance of a writ of coroner no basis was actually a series of motions his first motion was based primarily on ineffective assistance of counsel in which he appeals to the court in the spirit of by the recognizing that it is not retroactive under child this and then the series of other supplemental motions all fall within the same vein quoting other ineffective assistance of counsel case law so while on appeal the argument is very well structured that there are three different errors that were brought to the district or upon further examination of the defendant's petition to the district court everything is cloaked in this ineffective assistance of counsel argument from all of the cases that are cited from by the at child this to to strickland to lockhart to missouri versus frye while sometimes the words due process and the did not yours so would there be any problem with us vacating remaining for the district court to dress that question first because if it favorably to petition or on that issue which it may not after whatever hearing is held the sixth amendment issue and the t v issue would be an irrelevancy be mooted that would be correct your honor if indeed that claim was preserved and the court did not did not rule on it and then he's entitled to some sort of answer whether it be a grant dismissal or the granting of the written the situation then obviously that is an avenue here a little frog a little surprised that you would press this waiver argument so hard since the government itself is vulnerable to a waiver argument with respect to its requests that we look at material never presented to the district co transcript we also recognize that the proper procedure would have been to move for leave to allow that transcript to be made part of the record and in doing so we know that that the general rule is that new evidence should not be proper for the district court especially in terms no matter how relevant it is factual evidence that was not proper for the district court now in this case there was this very very odd situation where even though the case is somewhat old it's almost fifteen years old here however that the sentencing hearing transcript and the change of pleas hearing transcript cannot be recovered by the by the court reporter and the government was  after the appeal was found to find this and while it is relevant because it goes to the crux of the issue it was included in the brief but we recognize that the better practice would have been to advise the court and the defense accoun counsel of such and going to counsel's argument that this is not proper conduct i would quote judge scalia in saying that this is an opportunity to throw the baby away with the bathwater and here we have facts that if this case were to be reminded go to the crux of the issue this first circuit in united states versus george has explained that the issuance of the writ of corum novus is in rare and extraordinary circumstances where it hinged upon justice and in this case it would be if it is really mandated if the court finds that there is a fifth amendment issue or that the sixth amendment issue was decided improperly and the would have to get to the facts upon this not including this would seem to fly in the face of justice which is what our size we want to avoid in the issuance of a writ of obvious because we know that judgment finality is not something that should be lightly cast aside and that this should only under an extreme circumstances now that remain and would only happen in one of two situations one if this court were determined that the fifth amendment issue was not properly decided in that the court should do that or if this court will determine that the district court erroneous lee decided the sixth amendment issue now when you look at the six the court's order here it an ineffective assistance of counsel claim however the first circuit is silent on that specific issue of whether affirmative miss vice in the immigration context regarding the protection consequences would rise to the level of ineffective assistance of honor those cases also were never brought to the district court's attention this that alone his case and the wellman case were argued on the appellate level and so when the district court went searching for these types of cases that were cited by the it specifically had to do with the immigration consequences of the point the first circuit did not have one of those it's always known that you held on gonzales which stated that immigration is a collateral consequences defense counsel does not have  the same standard chest was this misinformation and whether it indeed prejudiced the defendant on that you saw it applied the same to pronto test and sort of the same stricklin analysis even though it was the prosecutor in that case that didn't even provide misinformation in that case it was just the total number of pretrial detention days that the defendant had served and then it ended up that those would not be credited down the line and the court found that to be more material to inadvertent commission as opposed to miss advice however there is also another hurdle here in terms of the plea agreement which appears to for defendants argument that there well your honor i believe that the solicitor general's position sheds light on your question because if it's not providing it's providing the wrong information would rise to ineffective assistance of counsel because you don't know then knowing the wrong information would the incentive to not give any advice for fear that it would be wrong and then we would have but that only is absurd if our assumption is that the fault is that you can't miss it heis yes your honor but you can  with respect to mr vice and that the case of none of this would be something distinct which it is well this also notices that those specific circuits that those handful of circuits that had that preexist and law that they co existed have only with the fact that there was the separation rule of collateral and direct consequences of a guilty person that consistent with the idea that there was a preexisting rule barring m be objectively reasonable in that what would in itself be ineffective assistance of counsel because when we look at ineffective assistance of counsel the first prong of strickland advises us that we need to see whether the lawyer whether he is duty is well well that was remarkable that we have now the government has changed its position three times in the case the the present the presentation an oral argument disavows the way it was presented in the district court and the way it was presented in their brief and this court should not permit appeals to be adjudicated in that way it underlines the point i was making that it the court should give should grant our motion to strike the questions about the allegations that are being made by your client if we are to remain and and the object of my remit is to get at the truth of the matter i don't understand again why we should why should we sanction the government at the cost of circumscribing the process in a way that we may never find out what actually happened here but doesn't make a lot of sense to me it happens in litigation all the time with specifics we have a short excerpt of cross examination from the trial at which to give a fair reading of those three or four pages two prosecutors are doing their darndest to prevent these questions from being answer what are they trying to keep from being so that the judge is putting strict limits on cross examination on this topic saying it's stand gentle it's irrelevant and the defendant michael and he's words the way a savvy witness response to cross examination so we don't learn a lot from what the testimony was in that cross what we learned is that the government was trying to prevent the truth from coming out during that cross on this subject and that it's a snippet we didn't even i mean i wasn't even given a copy of this transcript is these four pages attached to a brief i don't even know if there's other relevant material in to make up in trying to understand the argument here the fact that the piece p s are specifically says that he thought he was going to face immigration consequences we wouldn't know that p s r been reviewed by  yes but but what only after the pleas that the idea was certainly i suppose i made two points and i replied yes one is that it's all after the plea and the second is that it strongly corroborates that the fence counsel was giving wrong advice to it does seem odd that your client waited eleven years given what you just said which is the p s r confirms that the advice he was getting was wrong so on your count we have a lawyer saying there is no immigration consequence but a p s r saying there is an immigration consequences law should the defendant believe a probation officer who is not a lawyer over his own lawyer who saying this is incorrect in the recent report is not always correct from a defendant's point of view no expert but is that not of the case in any way to know whether he's out of active sin and if i just to finish on the timing if i may and then they don't and immigration does not in fact come after him for ten years united states to do your home thank you and your american citizen children