cancellation of removal why because there is no evidence to show that he was properly informed of the consequences of signing a voluntary departure plus the government never show that he signed a voluntary departure form both under these facts he's not going to be placed proceedings he never had that opportunity they're relying on an state court case where he pleads guilty to a misdemeanor offense and then in the minute order somewhere down and in the notes it says that from remembering this right i think he said something the fact that i want to fight this i want to go before a judge and they told him well you could do that but then you'll remain in detention for a long time and we might arrest your wife right now he was coerced they said if you if you choose or we're going to go after your family we're going to deport your wife ok which is false ok so that's all i'm trying to figure out so he didn't know if what you're saying is that he needed to be advised that the consequence of taking voluntary departure is that you will basically forfeit your right to go before a judge i think he did know that based on his own testimony what he says is that well i was coerced as you said into giving up my right to go before the judge because they made these sort of subtle for us right well i kind of disagree that he knew because he wasn't i mean that information that's given that's been given to him is false so he's being told you know wrong information you know remain in custody for several months you can be shipped from jail to jail that's wrong he wasn't he wasn't subject to mandatory detention he would have been eligible for bond so this problem is that you're telling us about the cases of which we are we're fully aware of what sort of statement should be made to a person if they're before the immigration court but this is in fact case this case is a criminal case muto in which he was represented by counsel and they were trying to arrive at some way that he would be able to less news his time in jail they entered into a plea bargain immigration judges it was a voluntary plea bargain seems to me that that distinguishes the cases that you've been citing to us the lawyer was trying to get him is good deal if he could so he wouldn't have to go to jail  got them he agreed to them why doesn't it distinguish that from the cases that you've been citing well first of all it's not really clear that he agreed to these terms because the what is in the record is a minute order and the minute order doesn't show he they're trying to amend you're trying to attack a state judgement with to the record shows was completely valid on the bases something that might have happened and that we don't know about that seems to me a big big jump it will he's a look at a lawyer there remember he's represented by a lawyer we're not attacking the conviction you're on a word tacking the fact that in the minute order there's a annotation that says he will be in jail for ten days or for whatever time it takes for immigration to remove him that could have been being placed in removal proceedings and being issued an m t a so this is this is different it's part of the plea bargain where does where is the plea bargain there's no plea bargain in the record the lawyer could have asked for a plea bargain the lawyer who represent could have asked for a plea bargain could have asked for anything there's a waiver that takes place by a person who's actually has a lawyer looking up for a centrist how do we set that aside well i agree that there could have been all these things but that the record that is before the court today is only a minute order that doesn't show that there was a plea bargain that was signed so more informed somewhere along the line in this case either during the criminal case or after dinner in the immigration proceedings for withholding for voluntary departure you know all these things and they have no idea you know what the process for the remedies or the procedures are that have to take place before a person is subject removal you know  including you know being removed subject to a prior order so there's no showing that one the state court judge considered all these alternatives or for that matter even knew that they were available so i to me the basis for concluding that well it's clear from the record that this defendant agreed as part of its criminal offense to be deported is you know there's a lack of showing as to what exactly went on yes absolutely correct the court had no idea and doesn't have the authorization to give him voluntary departure or give him all those advise old soul and anything that happened in criminal court regarding that offense and then if they want to bring in immigration proceedings into that criminal court's judgment is just legal error so that that shouldn't have any effect on this case i'm not sure they're talking about gratian the lawyer for the defendant says we will take my client believe it that will still do the waive all of the so called rights that we give them and there's nothing to indicate here that that this person was not properly represented and nothing to indicate that anybody was thinking anything about immigration they were thinking about settling it mr meter and getting up i knew your honor that would be based on speculation because the record does show that he when he was asked by the immigration court by counsel by under on cross examination he was us were you informed that this was part of the condition of your plea of your accepting to agree to the misdemeanor offense he said no he was asked by was he asked by was he informed by school defense attorney he said no he was asked if the immigration court immigration just that was in the minutes that's true but unless it's shown otherwise that the laws followed in the court by a judge and it wouldn't show because it was never brought up so what you're really asking us to do is set aside a judgment of a state court in utah that appears to be valid and has never been of been taken on appeal on the basis of what might have happened and i i'm having difficulty that with yes you are i'm not asking you to set aside the criminal court we agree that he was he a agreed to plead guilty to the offense and that's it but that's all he agreed to the judge how do you know how do you know that we assume we assume unless otherwise that the court follows the rules they had a plea bargain the plea bargain would have to be on the record or the or the attorney representing the defendant would say i i mean we don't even have that record before us to know what was said but you have the record where he testifies that none of those things occurred and if it's a misdemeanor offense it's not a quarter record maybe there wasn't anything on the record on a transcript or anything like that if it's a misdemeanor it's worth if it was a misdemeanor offense might not have been a court of record where everything was ok and i have a you you want us to assume a lot of things i don't want to i know your honor i don't want to assume anything the only thing is that the whatever happened in the criminal court cannot bind the petitioner in immigration proceedings in terms of not the conviction but what supposedly was said that he agreed to for immigration purposes it's a separate proceeding and immigration proceeding whether be with ice or with  me gratian judge he has certain rights and he has certain advisers that he must be given and explained and if he'd are given those and those are properly given to him and he signs off on them then yes that voluntary departure will cut off his physical presence but this was not the case here and the other one of the cases from this circuit or the circuit case or the board of immigration appeals addresses a cases in criminal court they specifically say in cases that are in immigration proceedings or other formal documented process says that my client will go voluntarily go across the border and that's the part of the plea agreement where are you that it was improper it was improper for the lawyer to represent him to do that in part of the question right that's the problem it doesn't come off as immigration rights the board of immigration appeals or the circuit court of appeals has never said has specifically indicated in immigration proceedings with u s c i s with a  ice officer you're using you can't waive those you can waive those immigration proceedings yes absolutely but not with state court i'm going to reserve the right now with the state court no not with this even if it's a plea bargain with a lawyer there it's impossible there is no threatening to place in your honor i don't see the authority of the state court to make determinations regarding his immigration proceedings and his right oh they have a part they have an opportunity to make a deal that he says he crossed the border voluntarily they could make a deal we just don't know you know i've got to follow up on this because i have the same question so let's say that in state court the state judge had your client before i met him or her and alike and the state judge proceeded to lay out all of the advisers that you think are necessary that i want to be sure sir that you understand if you take voluntary to partial voluntary departure to have this consequential be given up this right now and the and your client signed off on that and said yes i agree i'm all that's worth it to me to get less jail time i think that's what judge was asking if all of that happened would we then be outside the realm of the bar because we we would have had a state judge explaining on the record  again your bar and the board of immigration appeals specifically talk about immigration proceedings so even if which this our position is that this did not happen and let's just say it happened yes he would still have a right to talk to when i saw officer me to return within thirty days and the sense he judges is fine that the sentence or right while it doesn't buying the immigration authority make to allow him to return three days does it because the state judge has no authority to bind immigration it would be  the record of conviction surrounding the petition is february two thousand hartcher provides insight and background two to his voluntary departure do not have a record cite for whatever it is that we have that sets forth the terms of the plea agreement document that yeah i am for i just can't find it here if you have to have the record so that would be helpful three so the record of conviction indicates that the petitioner was to serve ten days or any lesser amount of time it would take forty just to complete their paperwork and remove him the record of condition also listed as a condition of his probation that he not enter the united states without legal authorization therefore the record of a conviction and the case at the petitioner and his criminal attorney were aware of the impact of immigration consequences following the conviction and indicate that he accepted voluntary departure and lieu of in lieu of removal ok i was just going sucker there because that's why i want to have the record before me so you're saying that we have  something looking at three ninety nine actually yes right and you're saying that that document confirms that he was advised of all of the consequences of taking voluntary departure including that it would cut off the continuous presence and he nonetheless agreed that the government is going to begin what whatever percy things are necessary to remove him but that doesn't mean that he agreed to voluntary departure it could have meant he's just going to allow ins to start the paperwork and then he could say ok i want to go before i die well then he goes further with his order of probation and states that  that one of the conditions of his for placing that he's not to enter the united states without legal authorization which indicates that he will be voluntary or he will be well be removed that's what most of us my point it doesn't mean that he is a green is a condition of this plea that he's entering that he's going to accept voluntary departure i think it contemplates that he's going to be removed one way or the other right but all he's saying is that look i i expected that i'd be have an opportunity to go before an i j now maybe i would ultimately be denied all relief and i would be removed in which case i have agreed that i'm not going to enter the united states without legal authorization but that doesn't mean that i gave up the right to to go before  as part of this plea agreement well the government would argue that just based on the notation that he was to serve ten days or a lesser time or the amount of time it took for teach us to prepare his paperwork he's represented by counsel and that clearly indicates that he's going to be that he's going to be departing from the united states but doesn't specify them at my point he doesn't say and furthermore you have agreed to leave the united states by way of voluntary departure after having been advised of all the consequences  know you don't know so but if it's if it's in the government's favor you accepted that would you say although you don't know whether it's kept in all cases i mean i was i asked the same question i asked your point i  departure and they'll be binding upon i think if the state court as a condition appropriation if that's what we have in this case with a voluntary departure you grant voluntary departure yes and so that's binding upon i so i can say no you know you're not eligible for voluntary departure because you don't meet the conditions of the influence with the statute so you're asking if i scan can't come in and say that he's ok i mean i think my problem with your argument is that i just look at this little document here and that one notation about his having to agree to accept lesser time as it takes for and i just don't that this doesn't speak to voluntary departure anyway i mean just the same as  is expected to depart to depart the united states and not return illegally so i just feel like in that given notice that he will be departing the united states let me ask you a slightly different question that contemplates that you lose on this issue let's say that we were to decide against the government on this point and say that actually this case is squarely covered by a bar of florida's right what would the nature of the be would it is there still some argument the government has that he even if this voluntary departure doesn't count to interrupt the ten year continuous residence requirement that does it is there some other bases on what you want to challenge the ten year period or do we just send it back and say he's going to be deemed to have satisfied that element of the cancelation test go on to the other elements you know what i'm saying yeah i think it would have to it would have to be reminded to decide the other elements of cancellation of a ok but the ten year stay in the board in that alternative holding could you repeat that again i'm sorry i didn't hear the first part page five of the immigration judge and you i mean are they bored opinion  has held that that's not a basis to satisfy the nexus requirement i'm just asking whether or not you the government is still supporting that alternative holding of the war yes thank you thank you thanks very much counsel let's give you two minutes from rebuttal just as the court had pointed out that the minute order that is in the record of proceedings is not sufficient to bind the petition accept voluntary departure and also as the other judge indicated that the final authority for this would be somebody in immigration proceedings integration judge or an ice officer and not a state court just to make the court should be clear on used transferred from court to ice custody you're saying he did was go to jail he didn't commit he can go back cross the border correct and that would interfere with his time no he wouldn't fear if he voluntarily  alternative in for withholding of removal i'm sorry they haven't all currently pulling in here and i'm not sure i understand now what that's all about i think it's just that i mean he applied for multiple forms of relief cancellation asylum and withholding i think that goes to the asylum and withholding claims maybe all we've talked about with you all is just the cancellation i can't even get to the other two yet only ok i've got to think in terms of the withholding the court had asked again which the court has already heard about the barajas decision and just to be clear on that the boss decision plainly read the statute made a statutory construction argument saying that after the real i d act the statute clearly says for asylum claims we're going to hold the central reason and for withholding only stand cases we're going to hold the a reason standard and there is no distinction between mix motive cases and single motive cases and this is apparent in the subsequent cases in  vs sessions where both cases cite to barajas and say that for withholding we're going to use the a reason standard so that's the proper standard should have been used in this case and again we would argue that we made the central re anyways because in this case where the grandmother the aunt and the uncle were all killed there was documentary evidence death certificates newspaper articles that his fear of future persecution based on his relationship this kinship to this family and they would go after him single