i'd like to reserve three minutes and all pay attention time so i thought it would be helpful to to start by just clarifying that there are these two separate appeals in this case that have different but related sources so the first appeal comes from a twenty however he did not satisfy the prejudice prong and then in the interim between then and now the case was properly appealed it was timely appealed and in the interim perera came down and when pereira came down we look back at the case determined that in fact he had received a notice to don't know if it makes sense for you to spend your time on that and maybe my colleagues have questions but we clearly have a panel it has jurisdiction we're going to wait and see what they have to say and we may ask you for some assistance after that panel comes down but ok but anything we can answers that i can provide to be happy to but i'm also happy to turn to the thirty three issue so turning to rule thirty three between twenty fifteen and twenty eighteen and twenty seventeen we our office took over this case it was previously handled by a private attorney and we found there was new evidence that we think had been present and twenty fifteen would lead to a different result so we compile the new evidence and filed a motion for a new trial and in that finding the twenty seventeen record found that there were certain elements of the u b sir criteria that still could not be met even with that new evidence but we think there were clear errors an abuse of discretion in determining what pieces about it and came in and then with the remaining evidence whether or not we would have probably gotten a just some evidence standard so the part of this that i have the most trouble with is the waiver and whether there's enough evidence that there is any even plausible idea that he would have gotten a waiver and maybe you can help me with this but it seems that the later declaration doesn't talk about rape and doesn't talk about two thousand and six and i'm trying to figure out how that later declaration even if it's new and even if it comes in is enough to give them enough evidence to says some crimes but doesn't talk about rape and also doesn't give really the all the cases she refers to are much later than two thousand and six a couple questions packed in there so if i can take the last point about two thousand and six first there there is this issue that is very thorny at the district court level that i think we don't have to address and this is a question about whether we're talking about relief or whether we're talking about relief in the form of interim relief what putting all that aside i mean you need to get a waiver of an an ability right because of the crime that's the part i just don't know how you get over that part it seems like all the rest goes away if he can't get a waiver because it all becomes harmless i mean correct me if i'm wrong but if you can't get a waiver that's just the end of the story i think that's absolutely right on however we think this cotton's professional opinion after handling dozens and dozens of these cases and and getting waivers in many of them is that mr velvety rambo could have gotten a waiver and so that was her opinion i take the court's point i think that the court is concerned that she wasn't properly weighing the aggravated felony in question in this case is that right or wasn't specific enough about i mean she gives that opinion but the information she uses to support that opinion seems to not directly support it as to the time period or the so with respect to the time period again if we're talking about the difference between interim relief two thousand and six or later i'm not really i'm just saying like as a matter of prediction about whether the agency ever would have given away for in the two thousand sixty thousand seventy thousand hundred seems like you look at the practice in two thousand sixty thousand seventy thousand eight i don't care about the label of what exactly what it was labeled but just was anyone getting relief then and it seems like common comes in and says in two thousand and fourteen i had a client who got a waiver but i'm not sure if that's h us understand so we cite a journal article that says that during this time aggravated felony felons were in fact getting the sort of relief however the courts correct that we have we have no nothing directly on point saying that somebody with this precise conviction at this precise time how done the waiver what we do have is miss crofton testifying that either her clients or clients that she knows about from the call of hers that have aggravated felonies a variety of different kinds were getting waivers at a later time and the standards haven't changed so miss coppens opinion that those aggravated fallon's that were again some of some of whom were violent aggravated felonies they were receiving waivers and mr characteristics that were unique to him that made his case particularly compelling when weighed against the so she testified in her declaration said that not only were aggravated felons receiving waivers but that was being weighed against a variety of different considerations that were mitigating that she thinks in her professional opinion again would have been enough to get him released or he would have gotten a waiver according to her opinion however the district court in twenty seventeen did not let her opinion in because it did not believe that her opinion was new which is a point opinion that it found her declaration to be very compelling very well done a carrier of the exact language however it simply couldn't it found that it couldn't consider it because it was a new one and the reason it was a new is because according to the court the ultimate could have met certain critical elements so the most obvious of those elements are the helpfulness criterion and the criterion the law enforcement provide a certification can i take you back to the waiver though because everything that koppen says about the waiver would have been available earlier right actually incorrect your honor so and this is again this may be the second most critical point so the waiver turns on a variety of factors that are weighed and one of those factors is helpfulness when you're balancing the individual's equity is because it's then it's the individual for the waiver yes so first point the waiver is a separate issue that's an issue in this case only because once you once you've weighed the use  fact or is it i have no authority on point that says that the parents helpfulness if the victim in this case is a minor is what qualifies but i know i also have no authority on point saying that it's not so i just don't know of any cases particularly addresses that issue however if it were satisfactory for the purposes of the u v s it seems like the same logic would apply for the purpose of the waiver for a thirteen year old it would make sense that it was the family that was there was providing the help because the waivers the way results are merely weighing these mitigating issues that another form of discretionary only if anything to show the plausibility by pointing to cases like it that got relief and i'm wondering if it translates over to this kind of discretionary relief and i'm still kind of stuck on whether he can possibly win without examples of rape being forgiven well if that if that is the standard then i guess we cannot win but we just don't think that's the standard and he's there so actually specific these cases maybe the best way to answer this is to go back to a problem that we that we found with with how this case was handled initially with miss potter's testimony so nickel and potter again was the u s c i s agent that was called to testify in this case and she specifically addressed one claim that she made where she said look we just didn't see i never heard of a case where somebody had this precise conviction getting a waiver but what she also didn't say was that she had seen any cases came that came through with this particular conviction so it seems like it would be unfair for everything to turn on whether this particular very specific factual scenario had come through their office before so you sort of have to feel that we have to argue by analogy and again our expert in this case miss crofton who we think should have come in she's testified that there are a whole swath of different sorts of aggravated felonies including violent felonies and sexual abuse against minors had all received a waiver so point completely taken that we i do not have example unfortunately i wish i did have a case where somebody and then we have to make a determination as to whether or not we're going to accept that but we have standards of review that we take what is the standard of review on a motion for a new trial to be used the discretion ok so it isn't right or wrong it's abuse of discretion right now that's a very high starting to make considering the involvement here which is to go was aware of the attempted rape is a very important issue socially otherwise and cetera and and there's a lot of evidence that you're talking about but all he had before him was what was produced by the the movement for the new trial was and everything that you've talked about today in that motion for a new trial everything that i've discussed today was in the motion and the cases you said ok i'm sorry and any cases you cited they were all there i believe  so all we're asking for your honor we think the abuse of discretion came in the part of if you want to pack that abuse of discretion standard includes that some of the factual findings how the facts were applied to the law was illogical and the illogical factual finding the factual application we simply want the district court to consider that testimony because it seems to us that well first we believe that that was enough to meet the very low plausibility stand on a motion for a new trial you're not getting new evidence in a motion from trial you're saying the evidence before the the court should have been decided in different way oh i'm sorry your honor i was i was not clear about that so ours is a motion for a new trial based on rule thirty three for new evidence so in twenty fifteen i'm sorry about that was my fault in twenty fifteen the case was presented a particular way however mr valverde rambo is it and i see that i'm on my own time ok mr valverde rambo did not have evidence in the form of police records or court records showing that the crime that he was describing being a victim of actually took place and so one of the problems there that the twenty fifteen court found was that he simply wasn't able to show that this crime in taking place or that that is that his parents because he was a minor were helpful so then in twenty seventeen we had actually found that evidence our investigator went out and it turned out that the private attorney that was retained in twenty fifteen had the spelling of the perpetrators name wrong and so through no fault of our own simply couldn't find that evidence and so our investigator frankly who's very very good investigator but but also admits that she got sort of lucky one of the one of the clerks in the court was particularly helpful started spelling the name differently and landed on the correct case and so now we have the records and we had the police reports and with those two things we hired an immigration expert that now had everything she needed to a pine about whether mr el baradei rambow could have qualified for you back in two thousand and six so we did ask the court we said this is the rule thirty three motion with this new evidence if you put it together with the old evidence he would have he would have qualified for relief and so we'd like you to take that into account and the twenty seventeen court said the critical part of your presentation is co we can't consider that because it's not new and to get back to your honor's original question the reason this is so central to the abuse of discretion standard is that the reason for which she refused to consider that testimony was that she said that that opinion and the factual bases good morning you may please the court my name is philip sense because i represent the united states so if i may i'll jump right into this question about the rule thirty three motion i should say at the outset that i'm sure the court is aware our position is that the district court actually didn't even have to get to the merits of this we think that your voice dropped and i didn't hear i apologize we think rule through thirty three was actually not even the right procedural vehicle to do this motion we think the district court  saw an absence of authority on that one way or another and so sort of an abundance of caution when they had reached the merits we think the court didn't have to we think this court could make clear in its opinion that rule thirty three was not proper we think there's precedent for that in something as simple as the hinkson factors when you bring a motion for a new trial on new evidence one requirement is that the new evidence is material to ninety s it's an on bank decision that says the lawfulness of a removal order is not an element of the crime so i didn't write it was clearly an issue at one point whether his due process rights were violated so the implication of your argument would be that that due process right would just die at some point that there be no way to challenge something based on you haven't right that may be right i'm not sure conceivably there are situations where there are twenty to fifty five where maybe something could be redone with new evidence but our position is what the supreme court said in mendoza lopez all those years ago is that due process requires an opportunity to challenge a prior removal order the defendant got that opportunity and due process requires nothing more some measure of finale doesn't offend due process that's discretion in a way doesn't even capture it i think because what the court has said is that it will leave in place a district court's judgment on the rule thirty three in less it is illogical implausible or with nature of the air for it to rise to that level of illogical implausible or without support in the record but it isn't aren't you reciting the standard for reviewing basically a factual more factual determination   what the criteria are for a waiver and whether the district correctly understood that because your opponents argument is one of the criteria for a waiver is co op helpfulness and it looks like the district court misunderstood that because it just reports out there was no new evidence when in fact there was new evidence on that question so maybe i'll just meet that head on we don't think the district court pad in the in the misunderstanding in what the district court said was that this expert's opinion or one substantially similar could have been prepared earlier and we think that's perfectly accurate but if helpfulness so a lot of it could have been and maybe that's enough but let's just go to this helpfulness thing is maybe you have a response that's more specific so on helpfulness the district court also found that they were diligent in trying to find this evidence of helpfulness and that it wasn't their fault that they hadn't found because the spelling  so just a court says i mean it seems elsewhere to acknowledge that that really is properly knew and they were diligent so the helpfulness if it's a factor in a waiver then it seems like there is at least  small error but maybe you have a response that either helpfulness of a parent doesn't count for a waiver or something else about the helpfulness or something if you have any other response about what matters for helpfulness so here is where i think in your honor asked a question about the surulere here's where we  need to separate out separate getting a u v so from getting a waiver of the miss ability everybody who applies for use reason has to meet the former and it's the criteria including helpless aliens with violent aggravated felonies like this alien have to meet the waiver and in particular they have to show it is in the national interest and extraordinary circumstances and there i think  we agree that in theory helpfulness could be one tiny piece of that big analysis because it is pretty open ended as i understand it the waiver question and the alien can pretty much make any case they want to make for why they deserve a waiver and having their parent be cooperative as is one of the factors well i don't even know  formally defined on that apart from the overall sting under extraordinary circumstances public or national interest and i think actually the government's expert or just witness she wasn't qualified as an expert but her when she said th in theory that could go into the analysis although she hastened to add that the helpfulness of a parent would be given far less weight than the alien him or herself being helpful so i think the fact that it just ends up being one tiny piece of the waiver analysis justify the district court in finding that an opinion at least substantially similar to this one could have been created back when this motion was originally litigated and even if that's not true even if the district court is wrong it simply doesn't matter because considering this opinion from this cop and wouldn't have made a difference immigration expert in that case in this case in both cases she wrote an opinion saying in my professional judgment it's very likely a waiver would have been attained and in the prior case vasquez can balance what this court found is that that's just not persuasive because the alien didn't have specific examples that mirror his own criminal history and that's exactly true here she i think sort of very carefully obscures some of that in that declaration talking about aliens with aggravated felony s who obtain waivers and the fact is a lot of crimes are aggravated felonies and i think we'd all agree that they have varying levels of seriousness forcibly raping a minor  has to be at the high end of seriousness of any aggravated felony and that's exactly why the government witness who's seen thousands and thousands of applications who testified that she meets with all the other supervisors at the center of the process is every u v s application and they talk about ensuring consistency in adjudication she testified that she had never in all of her experience heard of an ailing given a waiver with a forcible rape conviction let alone forcible rape of a minor and i should also add on this point in case there's any confusion this isn't some sort of categorical analysis the defense i think is repeatedly tried to point out the p crime the defendant pled guilty to irrelevant the facts are what matter in this analysis and the fact is that this defendant forcibly raped a minor and just finished his prison sentence on that crime when he would have been applying for abuse u v s in two thousand and six and the government's evidence we think made it very clear that it's just not plausible he would have received a waiver in those circumstances if i may just to briefly touch on pereira your honor you made a comment about perhaps needing input from the parties depending on how this goes in other cases i would say without knowing everything else on the court's docket there may be unique circumstances here that require special consideration the way that this is been presented to the core without it having been first in the district court there potentially ways in which our record is a little underdeveloped of course it's also somewhat less common in this case where the alien stipulated to removal instead of actually having a hearing with an immigration judge so each of these cases is a little bit different and i just wanted to make that clear that we do think perhaps there are unique factors to our case that might not be resolved for example with the six circuits reasoning was adopted by this court in another case that might not be the very good well if there are no other questions we ask the court to affirm to ok thank you counsel i'll give you two minutes or  qualification so if you are a minor and your family members are helpful then that would that would count in favor the next thing i'd like to address is just just the idea of which which facts are weighed and the government the government's claim is this just  forcible rape is the term that the government has adopted forcible rape was not the conviction itself that's there's a different statute for that this was assault with intent to commit rape and statutory rape i don't want to i mean no way defending any of this of course however both the court in two thousand and fifteen and the immigration court both found that there were significant mitigating factors in this case and so we just want to highlight that but against this aggravated felony is weighed a whole swath of factors that i just don't want the court to lose sight of mr valverde roman was three when he came into this country he went to all the schooling in san jose and this this is particularly important his father when he testified in this case against the perpetrator the gang members that ran into their house and began shooting and in fact shot his brother in law they live next door and so he did that at great risk to his family and this is exactly what the u s a program is supposed to protect and to present before the core of the motion for  trial yes or no your honor it was presented in two thousand and fifteen in the form of testimony however the court records in the police records that went into depth about the extent of the crime itself so for instance the police records included information about multiple gunman multiple gun it's interesting that that ordinarily we look at what the lawyer presents to the judge at the motion for a new trial will be a little be emotional be written and they'll be an  included in the papers and it was argued and it was our you know trial ok but anyway the point i just like to leave the court with is when you weigh these factors there are a tremendous number of factors that show extraordinary circumstances for mr valverde around on one side and we grant it is being weighed against this aggravated felony however as ms kaufman testified she knows of many cases where there are aggravated felons who received waivers and some of those were violent some of those include sexual offenses against children so again i take the court's point that we do not have a case exactly on point