argument is united states versus firman if the immigration judge making a determination that someone in removal proceedings has committed an aggravated felony and removes that person on the grounds if the immigration judge it and determining that it was an odd felony then exhaustion of remedies can be excused so we're really left with the most important question in this case which is case was and on we also don't have the intervening supreme court precedent that was significant there does that matter anymore on collateral review what twelve years after this decision yes your honor that i think that the trysts i think still is relevant in that someone who is factually innocent of a incorrect decision of  versus a visit we distinguished and said that if you haven't if you have an alien who has waived the right to a direct appeal you can't rely on the miscarriage of just primarily the unified to the systems accounts claim that we make threw out well didn't he have to raise the ineffective existence of counsel claim prior to this he never raised it at the district court level your honor yes i mean yes i mean it's isn't this is an appeal from the district courts denial of a motion to dismiss the indictment right yes you are and when you look at the indictment it doesn't say thing about what we are all talking about here which is what happened in two thousand and four yes wrong as the indictment is based upon his conduct prior conduct of two thousand and sixteen that was just a reinstatement so every removal of mr ferman has been a reinstatement of his original twenty thousand and forty four taishan so what we're doing is attacking that original i appreciate what you're doing but i'm saying that's not the basis for this indictment there's nothing said in this indictment about two thousand and four the two thousand and sixteen removal that's referenced in the indictment is ultimately dependent on the dismiss the indictment in two thousand and sixteen that's correct yes yes so so what can you start by talking about exhaustion cause you kind of skip right over it sure there's there's three requirements and am almost getting that you think that your substantive your underlying substantive argument somehow justifies not having to meet any one of those requirements or at least not having to meet the exhaustion requirement and if that's the case what's what's the point of the factors under one thousand three hundred and twenty six dollars d well what's the point of rate having strict requirements for exhausting and for your stablish ing that the the removal proceeding improperly deprives you  opportunity for judicial review if you don't meet those two factors how do we get to your underlying substantive arguments and how can those be a basis ok well i will go back to exhaustion i think that exhaustion  excused as i mentioned based on the immigration judge getting the substantive part of the hearing wrong but i also think and we put this we certainly never said that no authority for that but i also feel  that exhaustion can be excused if really it's ultimately his thirty day appeal waiver or any the person representing him that day in two thousand and four waive that on the spot you're right he waived his rights to appeal so he didn't exhaust so what's your argument about exhaustion is it ineffective assistance of counsel somehow justifies the on the record waiver of appeal yes i think that if you're if your waiver is not knowing and intelligent then therefore exhaustion can be excused and he could have raised that ineffective assistance of counsel argument earlier as well had he i mean i'm just there's so many layers here and i'm not seeing you point to any of that lets you get past this seeming clear problem with exhaustion will there is case law there mostly in the th of if you if you haven't made a knowing in intelligent waiver that you haven't exhaust your remedies see evidence of a knowing no knowing and intelligent waiver here his ineffective assistance of counsel a gentleman who shows up on the day of a very complicated immigration hearing who it was not properly substituted as we pointed o was properly substituted the rule that he signed said that the non lawyer representative he had agreed to and it was also in there that the court could approve substitutions and during the hearing the court said well you're a lawyer she's not you're her boss this is fine with me and your client sat there not only didn't make any peep that that was a problem but two times as you look at the record consulted with this alleged interloper about what was going on in the proceedings your honor i respectfully disagree with the substitution process in that the the attorney who mr ferman had requested be there in this marcella garcia she's the one who has to request approval substitution that's exactly what it says additionally i guess we're relying of course on mr ferman in a process which he's unfamiliar interjecting in saying and knowing the law and saying this is going wrong this is not what i wanted and i think that's unrealistic you're so again back to this indictment it refers to having been previously deported and excluded and remove and on or about november twenty eight tw why are we talking about two thousand and four there is a fresh deportation a fresh proceeding that that falls in the middle of this doesn't it yes your honor he he was he's been removed he was removed in two thousand and sixteen in news just removed as well after this case but both of those are simply reinstatement of the two thousand and four removal there was no new fresh process at immigration so if your honor that's what is your authority for that i don't have authority for that your honor but that's typically how these are done in that you have one chance of going in front of an immigration judge and then immigration after that simply relies on that original what is your honor in mendoza lopez this report that the court found there the original administrative proceedings worse effectively eliminate all the errors that had gone wrong factually eliminated it do porteous right in order to be able to bring this claim which is as judge moore it's already said you've got exhaust any administration remedies you've got to show that the alien was probably improperly deprived of the opportunity for judicial review and that the entry of the order was fundamentally unfair we can't even get to the fundamentally unfair unless you can meet those st two prongs right and i think that ultimately because his counsel we feel was ineffective waive his right to appeal that's gone so then a person a mr firman shoes thinks what at this point can i do the attorney did not an opportunity for judicial review of the effectiveness of his counsel before today twelve years earlier or later yes we think that we think is whole process in immigration effectively deprived him of his opportunity of judicial review the fact that he never got the ten days notice all of his notice is required that he would not have his hearing within ten days for the opportunity to prepare when the government says you could have filed a motion to reopen the deportation proceed and to argue ineffective assistance of counsel i'm sorry your i think the government argues that he had to exhaust by filing a motion to reopen and he didn't do that anywhere i thought again i think then we get to a futility which is he waived his right to appeal nothing went right during these hearings but that went in futile because if he waived his right of appeal because of ineffective assistance of counsel that's one of the few ways you can get over a waiver so i am not buying futility on that honor and again we just point out to all the mistakes that were made in the hearing and i mean if we can go back to two thousand and four slightly here this gentleman the one notice that he doesn't sign that's in his a file is the additional charges that were brought against him because the st time around it didn't work he then appears with a representative who he meets the morning of that hearing and again i think that mendoza lopez states that based on the administrative proceeding being so sloppy those that can be excused additionally it again and i know we can't get your honour's paly we can't get to the heart of the matter because he hasn't satisfied the other progs i think there's ways of satisfying those based on everything that went wrong in the fact is this is the government had an opportunity to do things right they had an opportunity substitute right they had an opportunity given enough time to prepare they had enough they had time i mean immigration judge was decent he was he was if you listen to the audio  he knew potentially that this was not an aggravated felony but a gentleman who met him that morning took over we have not seen anything from the gentleman who took over that morning the government's had the opportunity that that man is still in practice in el paso we've heard from mr ferman of what happened that day we got a declaration but we never heard from his what we consider an effective lawyer what happened that day so we think those all those kind of circumstance coming together then we get to the heart of the matter which is we've got an l p r who was removed potentially will in error and that's really my and then did and then did he really enter he did reenter and charged with a legal reentry yes his family was here he had for us and sentenced again and sentence again where he had terrible counsel that nd time around and then removed yes and again re entered yes yes which doesn't really end we want to get back to two thousand and four with all of that we do timing in between we do his life because the basis for these subsequent convictions and removals are all freestanding are they not know they're all dependent on the two thousand and four women i don't understand how we can say that because they're already in statements of the two thousand and four removal they all fall like house ok it's still illegal re entry yes it is yes was there was also a crime against moral turpitude finding and you didn't challenge that until the reply brief here and so if that's waived there's an independent ground for removal that doesn't even look at your argument your other argument i welcome this court to read the district court rethinks where we raise both crime involving what you raise in the district court doesn't preserve what you raise there's two preservation issues one is the district court and one is to raise it with us and you have to raise it in your opening brief with us or we don't consider it judgements all us in his denial didn't even address it i'm it was a foregone conclusion the government we said they conceded it in there at the lower level they never responded to you admit it wasn't raised here until the reply we felt that it didn't need to be because we felt that the government had conceded it down below thank you thank you good morning my name is nicole hammond and i'm representing the united states in this case may please the court counsel the district court's denial of germans motion to dismiss should be affirmed because firm and do not exhaust his administrative remedies and he was not excused from doing so furthermore he was not deprived of the opportunity for judicial review and his removal proceeding was fundamentally fair firman satisfied none of the requirements for collaterally attacking a removal order in a criminal the entry proceeding ye one need not look further than the st requirement it mistreated because often to find the denial of herman's motion to dismiss was warranted was the failure to exhaust due to ineffective assistance of counsel mean his lawyer waived everything wait the right to appeal your honor the district court found that the defendant firman knowingly and voluntarily waived his right to appeal this court reviews that factual finding for clear error and the record on appeal reflects that this fine name use findings by the district court were in fact proper where if i disagreed with you would if i  that this was a stranger to mr ferman that he met when he popped up at the hearing and that there was not any and that he popped up the hearing and essentially  agreed to everything that the government was asserting and waived all rights to challenge that your i have two responses to that st the th and the th circuit have considered whether or not there is an exception to the requirements set out under thirteen thousand and sixty four dollars ineffective assistance of counsel both of those circuits abound there is no such exception as previously discus there is an administrative remedy to an effective assistance of counsel to this very day berman retains the right to move to reopen his removal proceedings on the basis of ineffective assistance of counsel he has not done so is that the that to be the case the th maintains that there is no exception to those three requirements set out under thirteen thousand and sixty because there is no exception recognized by statute and to find such an exception would up and congress's mandate assistance of counsel yes it really says spirit or you see what i'm saying yes your honor i believe that is the primary question and this court has held that a defendant launching a collateral attack on an underlying removal order must satisfy each of the three requirements from two thousand and seven doesn't do that because you argued it was a civil immigration appeal and you pointed out that i think there's a th circuit case kind of rejecting it in this application is that your argument i mean i guess i'm trying to get to why why we accept your argument that we wouldn't even look at exceptions for exhaustion at least maybe i'm not the case you're referencing as you mentioned is a civil immigration appeal  there's nothing in the record to demonstrate that you're turning marino was unfamiliar with hermance immigration case or the pardoning case law by conceding to portability waving appeal in declining the opportunity for relief from a strategic decision that permitted for men to be released from custody and removed to mexico that same day at furman contested the aggravated felony rape charge the immigration judge would have been required to review the criminal indictment and judgment underlying that conviction once these documents were admitted into evidence before the immigration court they would have all but for close the possibility of berman receiving any form of require showing requires a showing of good morrow character in cancellation of removal requires a discretionary determination by the immigration judge that the defendant is deserving of relief when you say we did there's no evidence ineffective assistance i mean the judge suggested that there might be a problem with whether we were dealing with an aggravated felony and  bright can we look back and say that was in effect your honor what i'm suggesting here is that this decision was a strategic one it did not amount to an effective assistance of coun because the immigration judge made clear that if this defendant firman had been convicted of organ organ contact then essentially firman would be wasting his time contesting the ch marino in response to that said at this time based on our knowledge of our client's case we departed ability additionally well wasn't the argument that under the common law definition of right there had to be sexual intercourse all remaining circuits including this one the board precedent remains there for any immigration judge in the circuit or a majority of circuits can find no your honor that is an open question in this circuit and the majority of circuits but the immigration judges are bound to be published or decision on the matter it's only in the th and th circuits that that has been overturned conviction of aggravated felony removeable for that crime no your honor the there were three charges ever movability the immigration judge dismissed the st charge because the defendant w what does it refer to what does it relate it does refer to the removal in two thousand and sixteen you are correct however that removal was premised on the removal order issued in two thousand and four  regardless of the aggravated felony rape charge of deported ability the immigration judge did find that  which at the time of this hearing was recognized as a crime involving moral turpitude by the board of immigration appeals in two thousand and sixteen the board of immigration appeals changed its position on that matter no longer recognizes a conviction under that state statute as a crime involving moral turpitude however it's unreasonable to expect the immigration judge to subpoena that fundamental change that occurred twelve years after the hearing we need to look back if we're to assess the fundamental fairness of this hearing which the government maintains we don't even get to that but if we were to assess it we would need to consider the case law at the time at the time it was clear that mr ferman w based on his convictions for two unrelated crimes involving moral court no your honor the firman has not preserved that issue for appeal however i was simply asserting that even if we were to reach the merits firman would not be successful in his argument this proceeding still was fundamentally fair however is opening brief focus solely on the rd charge ability involving the aggravated felony rape charge and the government is not conceding that a conviction under this subsection of the texas state sexual assault statute did not amount to two and was a match for aggravated felony rape however it's simply not dispositive here the district court has found that firman knowingly and voluntarily waived his right to appeal there after he never filed appeal with the board of immigration a as in two thousand and twelve i mean of all of these things are a chain reaction that go back to two thousand and four and you have an iteration of removals it seems to me there are failures to exhaust multiple times your honor i completely agree the defendant was incarcerated for a matter of five years in the united states following this removal order he never at any time contested the remov order he subsequently was then deported again and and only now over fifteen years later is he contesting that original issuance of the removal order but you contend that he in fact could file a motion to reopen the two thousand and four removal proceeding even today yes even today he could file such a motion  he could raise an ineffective assistance of counsel claim yes he could also race the issue of a fundamental change in law you could raise the issue of lack of notice he could raise any of these issues doing so would not preserve his right to collaterally attack shall review was preserved but so if he were to prevail in i'm trying to figure out what you're telling me if he were to prevail in his motion to reopen and the court said you  did not voluntarily way you're saying it would have no impact on the subsequent removals if berman was to move to reopen the immigration judge found that reopening was warranted he could potentially reconsider whether or not firman was removable and also whether or not he was eligible for any form of relief as previously mentioned immigration judges in the circuit are still bound to find defendants convicted of the sexual assault statute removable on the basis of committing an aggravated felony rape regardless but that he be entitle to a new proceeding because it wouldn't necessarily all be waived if his counsel was ineffective he does retain the right to move to reopen his proceedings the