whether or not  told the judge that he wished to appeal and the immigration judge said on the record sir you told me you wish to appeal that fact was found by the district court judge moskowitz and again the government in their brief states they do not was decided after the district court ruled on this issue they try to distinguish it by citing other cases in my opinion they don't do so adequately but in terms of the that's the case this is clearly a case where the facts are very similarly  decision and then in the reissued decision it was simply a concurrence because the court felt it did not need to reach the issue because it had determine that based upon the facts of all the figaro it was prejudiced but unlike this case in a  something to do with requirement of giving notice right it does not state that the reason that mr state's various deportation was flawed i believe he waived his right to appeal but the reason that it was flawed was because the immigration judge did not advise him that he had answer for me it is my recollection of reading the case and if i am wrong i certainly apologize to the court but it's my recollection of reading the case that mr st cyr was in a position where the immigration judge failed to to advise him of that right time that the that the the appeal would have been due but in terms of whether or not the immigration judge has the right to or has the responsibility to advise him i think that is very plainly set forth  the issue of prejudice was not decided in this case it was not ruled on below it was not developed in the record so if the court's ex follows leon pas to the letter it would simply remand the case for determination of prejudice but what i would u then in the alternative found that under section three going to want to rush the retroactivity argument was such that he should have been advised that he had a plausible grounds for relief based upon a regular activity challenge florio at the end of the court states in addressing the issue of equities even if you were not barred the difficulty of overcoming these hurdles further undermines his claim of prejudice the obvious that i don't know what is in the mind of  your honor's but that certainly does not sound to me like the court was issuing an alternative holding i think the issue here is very clear it was never breathed it prejudice issue was never briefed below judge moscowitz instructed us we're going to reach the issue of whether or not there was a due process violation if there is a due process violation we will then address the issue of prejudice we never had that opportunity mr interior model as demonstrated by the pre sentence report has extended family ties in the united states he and his mother very close he and his brothers and sisters are very close he and his niece and nephews are very close that would have been addressed had we had the opportunity to do so finally i would just note that it is my belief and i could be incorrect on this because i don't have the area the case with me but i sexual assault i submit that it would certainly be possible plausible for mr interior model to believe that if the court does not adopt the alternative holding an overall of figaro it should be manned for finding on fridays thank you thank you