our final case on the calendar today is jimmy will sign over six united states for seventeen thirty eight hundred thank you lozano pled guilty believing that he too a criminal offense believing that he was a citizen of the united states he believed he was a citizen of the united states because the united states department of state issued him a you shoot him a passport after he submitted an application and he included in his application accurate and complete information many years passed after  his passport which was issued in two thousand and two his basis for believing he was a citizen was also that he came to the united states legally with his mother as a lawful permanent resident his mother obtain citizenship mr he subsequently applied for another passport renewal passport again and his renewal passport mr was on a provided complete and accurate information wasn't almost a listener was convicted in two thousand and sixteen and the district of vermont that the department of state told him we didn't believe that this passport was issued correctly on our part and therefore you were no longer a citizen at the time  a well founded belief in fact he probably was a citizen until until the department state revoked his citizenship and soon he found that out he contacted counsel and he brought the koran notice that the appeal of which the denial of which is now pending before your honor missile was on a claimed in the district court that his plea was not following terry because he entered it under this fundamental misunderstanding of the likely consequences the possible consequences  the courts generally have moved away in the immigration context from the characterization of director collateral it's certainly yes i do think it has since two thousand and two but just to complete that thought your honor because you're certainly correct that historically the analysis was if something is a collateral consequence a client a defendant doesn't have to be advised of that whereas if something is characterized as a direct consequence he does have to be advised of that i would say the defendant of the consequences linda gratian consequences and found that the court had no such obligation there are cases by this court that discussed whether or not counsel has an obligation to advise the defendant of the consequences and i'm talking about cases that long preceded pedia in the united states of screwed which i think answers your honor judge felons question which was a two thousand and two case from this court a case that was decided citizen you don't have to what about the p s r that gave different information judged the p s r to me is a complete red herring in this case for lack of a better characterization the p s r talks about entered on a completely different date because mr listen was a citizen of the united states the government doesn't claim otherwise as of that date government contest that at the time or the government agreed that he was a citizen at the time of sentencing yes there was at the time a plea it was brought up as sort of it would appropriate learned naturally be and nothing else was mentioned about it there after but i would say and it's i think it's an essential point here that this court has in essence  the cases that your honor judge solomon you're referring to previously the older cases that are somewhere between seventy and forty years old in which this court had held that immigration consequences of a plea were collateral and therefore  plea could be entered voluntarily even if a client didn't understand them those cases have a since been explicitly disavowed in two thousand and two in the united states versus kudo would have been substantial legislative changes since the time of those cases where issues that's correct and that's something that this court referred to and kudos says look we used to believe we this court used to believe or held on the basis of the fact that there was relief from deportation available that that was the underpinning or one of the intellectual underpinnings of those older cases because there was a possibility of relief we're going to consider this a collateral consequence the other intellectual underpinning in those cases the old cases that this court explicitly disavowed in kudo was the idea that somehow because some other body other than the sentencing court imposed the penalty of deportation that therefore deportation was not a direct consequence it was time in a different person yes and i don't believe the government disagrees with that the fact that was potentially that i think judge cohen he did not make that finding he puts in a footnote that that why wasn't there at least an when mr lewis i know entered his plea at the time he entered his plea everybody but if he goes if he's to be believed that he wouldn't have plenty of he knew if they checked this out and they were alerted by the fact that the p or says what it is and they say we better check this out we better find out what the law is on with the age of the child is the time of the mother's naturalization and they go all through the inquiry and they find out you know he's not a citizen doesn't he go back to the district court and so the judge it was a misunderstanding here i'm going to you're going to let me withdraw the plea had he checked it out he would have found that he was a citizen of the united states because in the year in which he was sentenced in two thousand and six he was a citizen of the united states the state department age on which citizenship goes through the mother it was i believe that it changed over time but he was beyond that age it is factually it was through no i'm of the police it's sort of we're looking retrospectively are you raise the question of what would have happened had missed to listen i've gone back in two thousand and six at the time of sentencing he would have found out if he had checked with the state department and we have that he was a citizen and we have proof of that in the record because the state department issued him another passport and they got it right that just may mean they overlook what age but but but the state department made that determination in two thousand and four but before he entered this i couldn't stop all the two thousand and two and then again no judge i'm saying that had he made any first of all i know  found now he'd already received the advice of counsel your honor that he was eligible for derivatives that isn't shipped through his mother he applied for that and he was given a passport by the state department let me ask you about  statement had he known you would have gone to trial well as i said there was no because judge total did not find a basis for providing relief in this case did not find that defendant has a right to not be affirmatively mis advised under the fifth amendment about the immigration consequences of his plea judge cuttle did not make a factual finding about whether or not mr lizza know there is a reasonable probability that mr lasagna would have gone to trial and therefore if we agree with your first proposition that he was and i don't think he will should we remain for a determination for a finding of whether he would have gone to trial yes your honor i think that in the time that this case was pending in the district court the supreme court decided united states versus leahy and that clarified what the standard is in terms of what a moving party has to show to vacate a plea on these grounds and there had been a debate about whether it was a reasonable just find in standard or whatever the district court did ask for briefing on that but ultimately did not reach that issue would be so i have no choice in the matter it's the united states supreme court has spoken in the standard is whether  reasonable probability that the client would have entered the plea had he known the correct state of facts about his immigration and on the credibility finding i think that there be factual findings i mean this court has previously said before lead that it's not some person's word is not determinative in united states versus kovacs where you granted quorum notice relief on this basis and in kudo there were facts in the record that indicated immigration it was a significant factor in the client's decision to enter a plea so i think it's to some degree credibility and to some degree what are the surrounding circumstances for example in this case mr lazaro which you know that this court discussed and kovacs mr lizza to enter the country was twelve years old he entered legally he entered with virtually his entire family he was back to the dominican republic in the in the year since then the you know twenty twenty plus years since then one time he has a child here i mean there are factors that this court has previously in the supreme court only has instructed the district court to consider what's the status of the  don't represent him your honor but last i spoke to his immigration counsel they i believe they have been able to put it off pending this court's decision i've put off even having a finding there's  dinner there's no determine if there is my understanding is there's been no determination on whether he is removal on the government's petition for removal from the country question about yes you know anybody object to that portion of the no one no defense it sort of matters whether or not i don't think that on his hands right so what would matter if mr lewis on a sat on his hands there is a requirement of that that this court or that a court find that the the moving party raise the issue as soon as is reasonably practicable mr lizza no as i said that's why i got to the facts of it there was no reason for him to believe or i would say in fact for counsel to believe that there was anything in the p s r other than a mistake and in fact as i as i said before had he gone back and inquired he would have found that he was a citizen of the united states according to the state department i mean essentially what we have here is somebody who pled guilty believing that certain consequences would flow from that plea and reasonably believing based on actions by the united states government finding out a decade more than a decade later that he was in and tiredly different circumstance by the by the time you know he figured he was told by the state department that he was not a citizen it was far too long to bring a direct appeal obviously it was far too long to bring any sort of claim of ineffective assistance of counsel so in terms of due diligence he's done what he can do he didn't find out that there was any issue here until june of two thousand and seventeen and the koran was brought i think in january of two thousand and sixteen in the koran was brought in january of two thousand and seventeen ok thank you very much thank you three minutes rebuttal here from the government it please the court my name is nicholas folly and i'm assistant united states attorney in the southern district of new york i represent the united states on this appeal and conduct of the corps novus proceedings before the district court reliant almost exclusively on sixth amendment jurisprudence the defendant is asking the court today to import the broader protections of the sixth amendment into the fifth amendment and recognize the never before recognized due process rights essentially to perfect information are you saying there's not a due process right in connection with entering a plea i mean look at room left and look at all the jurisprudence we have about a voluntary and willing pleas that get that are entered in the criminal proceedings i don't think this builds directly on been discussing here the knowing what the consequences of entering a are are you saying there's no fifth amendment interest your honor the fifth amendment interest is limited to knowing the direct consequences of entering a guilty plea i think you know opponents saying that those consequences have become very direct as a result of legislation and is recognized now in levon that you can count on being removed after a criminal conviction of many kinds and that seems persuasive to me the laws changed a lot in the past fifty years why is that wrong you're on though the law on immigration has changed however the test for determining whether a consequence is direct or as a collateral consequence is not at test it hinges on the certainty of that consequence occurring and that's exactly the issue that was in front of the mitchell court in which the mitchell court rejected that formulation of the rule and held instead that the determining factor in whether it's direct or collateral is whether the sanction is one that the judge is himself out and it's important to note the specific facts and mitchell because they're the defendant was subject to automatic removal because he was a convicted drug dealer that's the exact same reasoning that the defendant is now arguing should be adopted here that because of of changes to the immigration laws those consequences your group case is the one where the new fact that rendered him right is that what you're telling us the case you just mentioned the drug use the defendant knew he was removed right well the defendant's argument there was that the corps had not informed honor my understanding is that on the facts of mitchell he was contending that his plea was not voluntary because he did not understand the right he meaning of the special parole term at the time  permanently misled him isn't that different your honor it's not different as to the question of whether it was a collateral or direct consequence because that issue hinges on answer is no that would matter your honor that that is an issue that's not presented here and i understand but it goes to your your your argument that so long as it's collateral it doesn't matter if the government misleads you out of there there are several reasons that the representation by by the state department in issuing that passport doesn't change the analysis you know why not the first is that the issuance of the passport was affect the plea they're saying he got the passport from the government and that is the government telling him he's a citizen and therefore he's and he doesn't have to fear removal and therefore you complete what's wrong with that sequence of arguments your honor as judge cornel pointed out to the issue is that there's no connection to the police pursuit and it's background information that the defendant had going into the plea it wasn't affirmative misrepresentation by the court it was an affirmative misrepresentation by the defense counsel and it was information that was completely divorced from the plea proceeding there has to be some divorce your honor the there was no representation at the time of the plea proceed and there has to be some limitation on due process that connects the right to the proceedings in this is the issue that mitchell is concerned with because if there's not some limitation and it puts the corner in the impossible because position of ensuring that there is due process in effectua there's nothing that the district judge in this case could have done at the time of the plea to satisfy the test that is being advanced here and furthermore the courts have been very clear that this sixth broader it provides broader protections in the context in the in please proceed ins than the fifth amendment does and that's notable because even pedia recognize that there are limitations on the guidance that a defense attorney is providing to their client to ensure whether or not the plea is no an involuntary there could be some situations there is particularly complicated deportation consequences and it's sufficient that the defense attorney provide notice and nothing more to the defendant that there could be deportation consequences so to to adhere to a prior precedent this co should continue to define the fifth member fifth amendment protections as being more narrow than the six the memory protections and even the six member protections provide limitations on the scope of notice that's required in connection with police proceedings your honor in addition to that even if this court were now to conclude for the first time that there is a a fifth standalone fifth amendment right and that immigration consequences are direct consequences that would be a new rule of law this court has never held that no other circuit has and china's decisions but acknowledge the fundamental right to fairness in the context of knowing what the consequences of a plea are and what to my mind what's changed over time is that deportation used to be an uncertain result it's now virtually certain and i think take your argument to be that because that has to do with the state department and not the court that it be disregarded but i don't see how anyone can make a reasonable determination about whether to enter a plea knowingly and voluntarily absent understanding that if you are not a citizen you are likely to be deported what is what 's wrong with that reasoning your honor the test that your honor was focused on there as to the certainty of the immigration consequence following from the entry of the guilty plea is the very test them as rejected by this court in the mitchell court instead it was focused on whether or not it's that direct sanction that the court itself is actually imposing on the defendant and nobody here is claiming that deportation was the indirect consequence your honor even if that were that case as set forth in our brief the government probation in this case also told the defendant at the time of this in a sentence that he was not a us sent us citizen before his sentence and he didn't inquire about it and that contemporary contemporaneous evidence under lease suggest that that was not important information information that guided his decision on whether or not confirming for himself that he had a passport in his hands but actually inquired with ice and tried to figure out why is it that in the p s r i am being told that i am in fact not a us citizen and then that line of inquiry  would have led him to understand that his passport had been issued an air yachters i see that on that for him it is had he gone to the state department that's it that's not what he would have been told and her evidence is that in fact he was issue issued by the attorney general or by a court having naturalization jurisdiction a passport during its period of validity the statute that what congress has said is that a passport is proof of citizenship so why was he obligated to go ask ice he was obligated because he was put on notice he actually accepted the facts as they were put forth and the government didn't contest that he was a citizen why would he go ask ice you're at that at the time of the sentencing the government also accepted the facts that were put forth in the p s r which said that he was in several places said that he was not united states citizen and also had other err carven yes just to sort of respond to some of the issues that came up here on ars one of them was whether or not this concept about the fact that it's not the sentencing court but some other body that imposes the penalty this court i'm sure on a recalled has addressed that issue directly the initial case that how that was mitchell is as opposing counsel has stated that was decided in one nine hundred seventy four in two thousand and two in kudo i'm referring to footnote ten this court says mitchell seemed to say that what mattered was not the likelihood of an event occurring as a result of the guilty plea but whether it was the court accepting the plea or another institution that made the decision that w bring about the event in question was a citation to mitchell then this court says so although the mitchell panel expressed disapproval of determining directness of a consequence based on the likelihood of its occurrence virtual certainty is another matter thus when an event is a certain consequence of a decision by a court it's nein inglis to say that the court did not obtain that event any action by any other institution or purely ministerial additionally as your honor said this court hinted very strongly in kudo that there is a fifth amendment right to not be misled or that a plea would be involuntary  if the defendant were misled about the immigration consequences of its play and again i'm quoting from kudo it page one ninety on its face defendant's argument is persuasive and we believe that it deserves careful consideration even though other circuits the first six and ninth have declined to reconsider their prior holdings on this point and so our strong hands the ability to overturn  the holding that's by far this mall for this court has already overturned the holdings this court has already said it just didn't say were overturning mitchell it didn't say we're overturning by but the quote i just read to you and there's other quotes from  explicitly reject and coming to the conclusion about the six the men explicitly reject the intellectual underpinnings of those cases they say in essence they were maybe incorrectly decided when they were decided or if they were decided correctly when they were decided they're no longer good law because life is changed in the intervening in the first forty years i mean or maybe maybe wrongly decided we get to just do that was enough to  go to the court now what i'm saying is that this court has already made the determination i'm not asking you is no longer good laws or you're going to yes and i think this i wouldn't say it's been reversed but i think this court has already ignored it in as this court did in kudo it that it's well that's why i say whether it's rightly decided at the time life has changed since the statutes of change and the virtual certainty of immigration has changed thank you very much so sure district courts then to take away from this i mean some of those are not ineffective assistance for a lawyer who has actual access to investigative resources to figure out whether or not this person is deportable that's not an effective assistance but it thorough and even though it was before rule levon was amended he made the inquiry and defense counsel also had made the inquiry and the government had made the inquiry and the result was the same he was a citizen of the united states it was subsequent actions by the state department that changed that fact in the future so i just saying that i don't know if you're a citizen it says who you are but if you are not then you could be deported and you should check that out you should make sure you get yourself an immigration lawyer to determine whether or not you should be deported and i'll give you a week to do that now is under no is a matter of fact i think that's what your argument your honor in the government's argument would lead to essential if the government is saying is that although the client had proof of his citizenship he had some further obligation to enquire i'm not saying the court had any obligation to inquire i'm not saying counsel was ineffective that issue is not before this court it won't would not be even raised in any decision that this court makes in this case i'm saying that if somebody takes a plea when the state department has affirmatively told them you are a citizen of the united states and later that person finds out that that was incorrect not based on any inaction on their part or any fraud on their part but based on problems with the state department's determination that person's plea is not voluntary that that does not comply with due process assign blame to anyone i'm not assigning blame to the district court or to his trial counsel that's i think not the analysis i think the analysis is was this plea entered knowingly intelligently voluntarily these are such unusual circumstances this case is not doesn't need to give rise this court's decision in this case doesn't even give rise to any large implications and unusual facts may be unique facts in this case this man entered the plea believing based on the state department issuing him a passport which is presumptive proof of citizenship that he was a citizen of the united states and because of that his could not be considered a knowing and intelligent involuntary ok thank you very much well argue that concludes our oral argument calendar today we have one other case which is on submission that smith versus brook