counsel forces there's a problem with the deportation order i mean is there a limit to this could be could he be convicted of illegal reentry fourteen times and then the th time attack three the order and go through the record in that case and i can't find a colloquy where where where somebody said to him you've got any problem with the order so i'm not suggesting any findings were made about the order i'm just  argument that this was that he he didn't exhaust his remedies he had an opportunity to get your dish will review the st conviction and even take it so we had it so your honor i think that question goes to the point so i guess there's two potential arguments one would be a freestanding collateral stop right and i don't i don't i'm i'm i don't think there is an element of the crime is that the order that the removal be valid you just you know an element of the crime is that you be removed one of the defenses is that not that he was not deprived of the opportunity to very much assume he was let's assume that or if we were to address the merits in this case we would find that he was denied due process in the original hearing just why do you get to wait to raise and we will we know what the what the statute requires is that the order not be subject to due to judicial review so and if there were only one conviction here or only this were the st time it would i think it probably wouldn't two what that says is that the deportation proceedings at which the order was issued improperly deprive the alien of the opportunity for judicial review years not assessed to be the proceedings before the i no court the government is not pointed any instance in which a court has accepted its theory that a prior criminal bar scene to be fair of the government was given the opportunity to because nobody raised this issue we did so maybe somebody will point to a case i'm not position is that when my client said i'm trying to stay here he requested cancellation of removal such that he made himself ineligible for voluntary tester and i'm not impressed by that argument i must say but i think it's clear that hearing my client repeatedly said i don't know i don't know him that this requirement i'm sorry the immigration judge misremembered that at the at the nd hearing two weeks later he said you know mr ball cassio had denied that argument that i'm trying to stay here is not an application for cancellation of removal i think that has no basis in even the b o h case law and i think moreover it really goes against the overriding principle that this court has said which is that immigration court should not be to stick tricked in tone in operation someone should not you know lose all their rights just because i one point they say the wrong thing after my client said i'm trying to stay here the judge says no there's no way for you to stay here and he said ok that's as you good morning honors graham all of them for the united states to start with the court's question about the opportunity for judicial review review there are no published cases that is correct or even unpublished cases on the topic of and  designed to afford an alien an opportunity in accord with due process after the supreme court's decision in mendoza lopez and what the supreme court said was that an alien must be afforded some meaning court said death but what does the statute say so the statute was enacted in response the supreme court as i understand but what does it say and says pacifically that the alien must show that the proceedings at which the order was issued improperly deprived him of the proceedings i think in this case he makes a good case that he was denied in those proceedings the opportunity to seek judicial review he later got an opportunity does that meet the statute allows you to meet the language of the statute i think of the statute and the language of the statute is that if the defendant is denied an opportunity in the administrative proceeding followed by whatever proceeding could happen there after he still has the right in any collateral proceeding that there has to be no prior opportunity and no no the government has not raised the argument before this court and prior cases but to answer a question your honor about whether he did what he says there must have been no prior opportunity the r d s ordonez says a defendant must be permitted to bring a collateral challenge to a prior deportation that underlies a criminal charge where the prior deportation proceeding effectively eliminated the right of the alien to or you might not be able to the point of both his st hearing and his nd hearing before the immigration judge were that he and michelle lee didn't concede remove ability because he said whether he would concede that he had committed a crime of moral turpitude he did and the immigration judge said because this defendant had already expressed that he had been potentially lawfully admitted the immigration judge responded to that concession by saying if he had some admission into the united states then the charge of being inadmissible wouldn't be appropriate even under a crime involving moral turpitude which is to say that once someone is lawfully recognizing that he was proceeding pro se do you really think he was contesting the immigration judge did determine that he wasn't just going to concede that you had been had that he had entered  went back to check that's why they had the nd hearing and the nd hearing he says now i don't have anything that any documents and he says he wishes sort of how this progressed which was that he did present his employment authorization card the immigration judge rejected that as as an admissibility document and then ultimately at the point at which this defendant had effectively been found to have entered on lawfully he conceded that issue the problem here is that voluntary departure is a remedy designed for someone who is going to readily admit all of the allegations against him and merely seek to leave of his own accord at his own expense and this defendant i think the easiest way to look at what happened was he simply wasn't a good candidate for voluntary departure because expressed that he might have been lawfully admitted and then even after that he said i want an opportunity to stay and that's exactly the opposite of what voluntary departure requires back that goes to the discretionary to focus instead on whether he was not improperly denied the right to at least argue for and you say because he in effect put the government through two hearings voluntary departure you have to give up your right to appeal yes i think the reason why that wasn't sufficient was that he didn't concede everything he actually made repeated requests to be permitted to stay and the regulation specifically prescribe voluntary departure where you cannot make a request that is inconsistent with voluntary departure and it's not necessarily even a formal application the regulation says you cannot make a request  what this defendant asked for again and again was the opportunity to remain even in asking for a voluntary departure his answer as to why he should be granted voluntary departure was quote i'm trying to stay here is that voluntary departure it's not this is not a case about somebody who could have been permitted to remain in the united states indefinite quote no no that's right but let's assume that he had contested remove ability at that point wasn't what the judge was saying to him you know in an inappropriate i'm i'm bothered by what the judge said about eligibility for voluntary departure at the end at the end of the hear is basically you know we have the single voluntary departure but you can get it well he did say at the initial master calendar hearing with everybody what voluntary departure was and the comment about your ineligible came at the very end after the defendant had already made it clear again and again that what he wanted was to remain in the united states and therefore it was not a form of relief to which he was in time you know he wasn't really requesting any form of relief he was just saying i mean it's it's not it's really sad because he wasn't articulating any requests for relief he didn't obviously was confused and didn't know any better and was saying yeah if all things being equal i want to stay with my kid he wasn't like contesting that he was going to have to leave and i think ultimately all of those stocks were before the immigration judge i would  point in the excerpts of record where the defendant actually told the probation officer in his prior case that he had no children that you are three hundred and nine and has never had any children so that is questionable as to what his circumstances were but the or before this court but it would ordinarily be and if this court finds that this defendant was denied an opportunity to apply and that the district court should re evaluate his plausibility for a voluntary departure that's an issue that we can raise before the district court that you know i thought maybe on rule he got sentenced based on these prior convictions correct he got sentenced faced understood your sentence was based on the two california and under this court's precedents he did because in two thousand and seven and in two thousand and nine he sustained felony convictions that at the time his sentences were imposed were longer than thirteen month i know you have a limited amount of time but i want to ask a quick question on the issue of prejudice assuming there was a due process for wishing here it seems to me that all of the equities that were in he would have been honor and i have two answers to that st i would respectfully dispute that point there were issues that were not before the i j for example his work history did not come up also his very traumatic childhood nothing of that came you know the history of domestic abuse that he suffered also you know the humanitarian circumstances underlying his his mother's application for relief under than a current program but the nd guess legally what i would say to that is that this court has said when we're evaluating prejudice and this is very clearly invalid as no doubt there's no law which is cited in our briefs is that we serve a decision and so the question isn't really what this judge would have done it's serving decisions you know granted a few more minutes i would briefly unless the court would like me to address something different address the point the government was making regarding him expressing a desire to stay in the united states the voluntary departure regulation does not stay i want to stand want to stay and when the judge finally make clear to him no you can't he said as you please i might not be saying that exactly right yet that's exactly what he said he said all right then as you please so he submitted he under when the judge me clear that that wasn't an option he said ok judge so and again the language of the regulation doesn't say that you can't you can't express a desire in this the court is any further question