real issue in this case whether it's a tourist had an opportunity to challenge his that is one of the central issues in this case you know and so if he was still in contact with his attorney wouldn't he have the opportunity ins contacted his attorney the state now we've made arrangements for a flight on december twenty fourth at that time mr torres was no longer in contact with his attorney and never received information about the especially important because mr torres raised an equal protection argument which of course where cannot be addressed by the board of immigration appeals that cannot rule on a constitutionally of the rules that it must be enforced mr tourist stepping back june of ninety ninety seven his appeal was still continuing the washington court of appeals had not yet dismissed his appeal at that point in june of one thousand nine hundred seventy when he appeared before the immigration judge the service could not meet its burden that mr torres was deportable because there was no final conviction on record and at that point the immigration judge had a duty in a responsibility under the statute to find that the got the service had not met its burden by clear and convincing evidence that  for us to say that mr torres is that far from losing contact when the united states government with all its funds and resources is the one that i misstated this and started this if mr torrens had been allowed to remain incarcerated during this appeal all of this would have been avoided an not have the authority to do such a thing in fact she does to the delegate of the attorney general in the attorney general this has the right to allow for repapered and this was tied in with his equal protection argument mr tours to say i wanted to be treated like thorsten given up his right of appeal to give up his right to appeal he must waive that and must be knowing and intelligent and this court has found that when a person is that an immigration hearing and makes a master silent waiver immigration judge that that alone is not sufficient serenely and intelligent so while mr choice may have forfeited this right it was not a knowing and intelligent waiver which the court must find why must we find it in order to find that clear that when a person gives up the right to appeal unless the knowing and intelligently government must demonstrate that and this case under these circumstances mr torrens did not make an online intelligent way for why can't we find  i don't believe in this case forfeiture can apply to mr choice because this is an individual who had filed a notice to appeal just a few weeks before mr torres made that effort in order to appeal are now for him to take that and to give up torres was removed from the country by mistake in error by immigration prior to the completion and in the king was is that the order occurred in september of ninety seven ordering important he filed a notice of appeal to that end i believe november november ninth of ninety seven and then he is removed in early december approximately a month later and it's an  or well if the facts that came out where that he called his lawyer and said i'm being deported and the next day he calls again and says i've been deported i'm in mexico and that occurs around the early part of december subsequent that you have a period of approximately twelve or thirteen days which the evidence was that he had stayed in repeated contact with the as lawyers about getting back into the united states now we don't know nor was any evidence submitted as to the content of that so we would speculate or we could assume but because his lawyer calls ins and says you made a mistake we need to get my client back you should not have deported if the assumption and i think it's a reasonable one is that the attorney spoke to his client and said that's a mistake i'm going to work on getting you back from going to work on  why we have this repeated contact until december twenty first which is the last day which is reported that counsel speaks to his client that december twenty first of nineteen ninety  seven i think the court is that later on the question was where was the defendant well four days before christmas and he's in mexico in his family's united states i don't think it's a long trip but i think the trial court said is we know where he is he went to a he went back to you last speak to his attorney december twenty third and that's has worked out all of the arrangements has a ticket and has available and calls a lawyer and says tell us what port of entry your client will be coming to we will arrange to have a pass at that what they do is they write his name and he goes they check advices he's supposed to be allowed in the country on the twenty fourth of december his lawyer calls him at the same  he has been reaching him back for the last approximately two weeks and he's not there they don't know where he's at he's gone and subsequent to that there's no conversation between the lawyer and the all although we have the number he have the lawyers number and have in fact called his lawyer both from the united states and from mexico when this there was occur at no time does he ever contact  made a lot of argument about this the judge was wrong he could have appealed the fact is that she didn't terminate proceedings that his request to be under the new act and then very withdrawn all that but really  to basically lose or to give up those rights he has control over the situation he has his lawyers number he's had contact that is not disputed the lawyer has made contact with him  i don't think so but that's my own personal opinion and i'm going i'm a what i'm asking criminal is one of one of the arguments that we might get to get far enough down the chain as well would he did he have plausible arguments in order to show prejudice for the fact that he so close then you have the right you have the right to decide under what law should apply to your deportation rather than the immigration service and then say that mine is in february of that year rather than me and you know it's on his wish list is that he wants to be treated of that new act doesn't justify nor does it establish a lawful we have a couple of equal protection cases i'm sure you're aware of about whether somebody  this was going on today and there may well be some but i think in the in the cases that we can argue all we want about what could have happened what should have happened what may have happened look but the issue have brought those arguments and yes he appealed it he had a lawyer follow up on it and he terminated he abandoned the contact with his lawyer so any future arguments would have been we would have got a petition for review to this court and we might or might not have agreed with him but we would have done so on the one hand yes he could have done so on the sense that i mean he's not locked up in some dungeon in the amazon and i'm able to communicate with his attorney  nothing on the record that shows us that on the other hand the united states government by mistake has created a situation where this is the result but the united states the court is correct i mean that the united states immigration service created a situation which is that the general regular course of the best however upon realizing the mistake and while this fifth while mr torres is in contact with his lawyer and his lawyers in contact with mr torres they take steps to correct it and return him to the united states he's out and he has the ability to do that he's been doing that and there's been that communication then all of the sudden within his control he terminated then we are unable to find him and in the brief they said the government couldn't find him well of course he's in mexico we try but we've made every effort so that i don't government for what it did after realizing it's time to make it right i understand and that's the difference in this case is there was an effort to get him back had he stayed in touch with his lawyer he would have been back in the united states tied to the equal protection argument because mr trius could argue that he's being treated differently than other similar l p r for no rhyme or reason thank you ron thank you very much thank you