actually what you're saying is that we don't really know whether they would have been immediately available or not how we have the arguments right now they were mates with first time on appeal but we have some evidence from some website that basis would be appropriate and the second reason if the court were going to reach that is that the district court's ruling in this case is very narrow actually the district court decided the case on the basis of the very first prong which is that he waived the appellate review and that it was a considered an intelligent waiver and the district court did not reach the issue of prejudice in the sense of those three  showings the district court discussed the issue of availability of relief in the context of determining that the waiver was considered an intelligent and if you just to read that out of context it almost sounds like the district court is really just gusting the prejudices issue of the district court specifically said that it was deciding the case on the basis of the first prong that the waiver was considered intelligent and unlike some cases in front of this court where the prejudiced issue was developed  and ruled upon by the just record in this court was able to sort of reach that and reach its own conclusion based on an appropriate appellate review standard in this case that is not what happened in the district court did not consider in its ruling that evidence at all and certainly did not consider the evidence brought out for the first time in this appeal the other is two that the court might address has to do with the standard under two twelve's see in terms of what to show to show that there was a plausible grounds for a leak and whether the outstanding equity standard applies and i think that although there is some case last floating around i don't think this court  this court talked about that for serious drug offenses particularly drug trafficking and also need to be shown where the applicants record reflects a pattern of serious criminal activity and in  five at the time the case was being considered by the i j a there was just the one conviction and there was no discussion about the true prior arrest and what were the facts underlying the of the conviction we don't know what he's will the judge and i don't believe we have a copy of the guilty plea transcript what we do have is his rendition of what he says happened and decorations on the record about it being based on a problem that his girlfriend was having and therefore he shot at the young age is a factor that the ins has considered that basically his entire life was spent in this country that his parents and legal permanent residence his siblings that he was involved you know there's evidence in the record about his involvement in school how well he did at a plausible grounds to believe that they could have found this court in several cases made this a fairly moderate standard and i think the government's frankly stronger argument is that they can show is that their burden would be that they have to standard and evaluate this he basically put the burden of proof to show that he would have received relief on petitioner and that is not the burden that he bears at this stage of the proceeding is to show plausible grounds for relief and he doesn't need to show outstanding equities he needs to show essentially that immigration judge would not have abused his discretion if he had granted this relief and we do have in the record in addition to the information listed a declaration from an immigration law expert court in any case in this court has phrased it that when we would never we would never get a case in which the ins brought an appeal to us once that stop us from granting him to twelve the relief we could possibly started by that byrd right so it probably has to be the other that is the facts right now and say what the i g would have done it's really more a question of what the i j a could have done and i think that on these facts that i could have grandchildren you're saying you're saying that that given given the evidence that there was probably around with what you think are on the fifty percent really was available and sure everyone in this courtroom is more familiar the immigration law than i am because i really am a criminal defense attorney but now that i've read these things i do think that he applied the wrong standard in evaluating that first prong of he's never even reached actually the third  potential grounds for relief during the hearing and so the only issue that was supposed to be considering this president is that right you know i over my time maybe i should let the government address that because i don't really chopped me off at the knees in the district quirk with respect to my argument that the what the what the the titian or i'm sorry what the defendant was proposing which was the sort of three pronged attack on just one of them by using t district court i think you're on to reach the issue of prejudice well on page two ninety two and two ninety three of the excerpts of record you'll see that the district court says assuming that to be the case the court finds that the i g is there is there was not prejudicial misled by the defendant's argument below that it had to be a pattern of criminal conduct in fact that's incorrect the b i used to susan the law and also the standards from the circuit is that a single serious criminal offense and i don't think there is really much just future this was a single serious criminal offense that involved the discharge of several shots on a crowded street corner in santa ana at a at an occupied vehicle that this is that kind of single serious criminal offense submission i have family here i've been here a long time that's not enough to overcome the outstanding equity stand as far as to twelve h again just on a looked at it looked at the plausible grounds and didn't what the defendant had in  five in terms of eight to twelve a showing for which the standard is extreme hardship all they have was a garden variety showing i have family here my family needs me he needs to show much more than one of the cases when this in which this court has approved eight to twelve each showing as being a plausible grounds for relief cases like arietta there's been much more than just a single conclusory paragraph which is all that was in the record here from this parents we rely on our son we depend on him greatly proceeding then he would have had the opportunity to develop the record and it would have come out that his parents were lawful permanent residents that he was a lawful permanent resident that he had been there since he was two and there's other things beyond spend a couple minutes talking about the immigration visa immigrant visa issue because all of that although it wasn't raised below again because we have this argument we thought it was going to work in a sermon against top us off at the knees but in order to get adjustment  e has to know that you're saying he had to show it yes he did you're saying the record shows that he didn't show it right i'm saying the record shows that he can't show he well now that if you say he can't show what you're implicating judge word was concer you're saying he had the chance and didn't that's a different story well he never had that kind of hearing your honor we concede that i mean the immigration judge essentially told him you don't have that kind of relief available and years later the law has developed such that it should have been now it appears now that he could have had that relief available but the government's point is we then reached the issue of presidents and for three different reasons that i've talked about two twelve student two twelve h that's one reason i've talked the extensive record of current family ties hardships and other relevant factors presented to this court were before the i j a the result might have been different but he goes on to basically analyze his take on what should be the result and i think that that that that sentence was sufficient for him to find plausible gallus relief and yet i think i would like to go to the to the question of the beast on page sixteen of your brief you have argued an immigrant visa that would have been immediately available to him because first preference he's the numbers were current as of one nine hundred ninety five how does that put into dispute what the government what what the government then raised in its brief phrase to the website that that that is not true that that those numbers were not available in one thousand ninety five my understanding is that we were informed at the time i wrote the opening brief that what we said was true i do not know enough about immigration law to answer that question without us having a  that's a very good point and certainly that one is that there's two things one is that it is the government the answer judge silberman question it is the government's burden and once we've shown the plausible grounds we alleged that because his parents were legal permanent residents they could have applied for an i one thirty visa on his behalf we did not discuss in the district court at any time based on either an inquiry by either and that's why i started my argued by saying i can see that the court might get to this point which is where we are now and if we're at this point i think that the appropriate remedy is a remain for us to now delve into this and factually developed it because there is some conflicting information about that and it was the government's burden to make that showing with regard to basically rebutting our classical grounds for relief they have to this show were statutory law eligible the president that if the defect didn't matter and this argument is that the defect didn't the next case zero six five zero two five united states versus ramiro d is a submitted at this time the next case to be argued is zero five five six zero four three miller versus lean international each side will have twenty minutes