helpful order asking us to come here today prepared to talk about the kwan and chan cases and when i went back and read through those cases it was clear that you didn't ask us to do that as to whether or not kwan was retroactive because of the timing that doesn't apply here but what i discern from that is the fact that the chant the ninth circuit chanties basically said that even after the  passed as to whether or not somebody was affirmatively misled about immigration consequences are still good law and so where that leaves us then is really with three possible applicable standards the quon standard of w standard is put the clear law correct advice but i also submit to you that any of those three standards that i lay out his convictions to be overturned you see and you start with i just want to make sure i understand the facts here received information from the defenders initiative that she would likely be deported you get where is that in the record i believe that's in his affidavit i believe i'm my understanding from his this and she also saw where the attorney tries to negotiate a miss prison charge to get it lowered because of the advice that that would put her on solid ground to not get her thrown into removal and you know i have to say i'm i thought this attorney does more than what you usually if it what you usually see and i do immigration cases have been doing them all the time and i don't even know panel going to do so it's a little bit it's a little bit hard to say that he was ineffective for saying that he goes out and gets her advice from experts tells her she faces the possibility of that tries to negotiate a lower charge because that would be safer for her and the only thing now now of course on the other hand if he had told her she would be removed and that ended up to be wrong then that would be a mis deported in light of the conflicting information it's not enough to advise of the risk and in this case like i pointed out there's two prongs to preview the first is very clear if the law is clear you have to give correct advice the second prong is if the law is unclear in immigration law then you have to advise of the risk in this case the law is very clear there's an immigration statute that says if it's an evergreen a felony aggravated felony you will be deported there's another immigration statute that delineates out certain crimes that are g didn't happen here regardless of any and all that didn't happen at all but that's where rodriguez being a comes in because that's what in one second it takes but the is clear law clear and vice or correct advice standard and applies it directly to the facts here roger is vegas says when you have an immigration statute that delineates out of a criminal charge that will lead to deportation that triggers the is clear law so that united states v rodriguez if they get it didn't come after this defendant was sentenced yes or no i believe it did all right so how could is clear you have to advise correctly and the immigration law was clear and she was not advice correctly well it was the at the very least not advise that she where she misled she was misled by the immigration attorney yes absolutely the immigration a ey second immigration attorney the second immigration attorney she was absolutely misled even though the first immigration attorney what i'm just i'm just you know this is the situation that we have they were trying to understand it you know within to defeat this let's just say the second let's say the one that said you could get rid relief wouldn't have been there he just had the one he got he said he hires an immigration lawyer to say no you can't get relief or if the second one hadn't come in there then he would have would he have been adequate told her that yes this attorney said you will be deported i agree with that it's virtually certain you'll be deported right and then you could later then come back and find someone else that would say no you wouldn't have been deported and then that would be i see this other person if they came in later so he did too much he did too much here he got more than one opinion he got too a matter of did he comply with all criminal attorneys and ineffective per se because they aren't experts in immigration law absolutely not but that's what the united states supreme court that's the burden they put on  criminal defense attorney that's a burden that is on us and so it's our job to look up the statute and if it's clear advise our client accordingly it's not a matter of the furring to an immigration attorney that's exactly what the u s says you can't do anymore that's what you could do is you could give no advice on the most with your recognizes that most of these cases nowadays and in pleas and so you know i mean if if you're an effective in that situation in this advice from somebody that's a problem i just want to end by saying you know but the a clearly says clear lock your advice there but there was not there was a clear law here and there was not correct advice and the question is this kind of just how we want to obtain convictions is by telling somebody you're not you know not following the and not giving the correct advice misleading them adopting basically another attorney's wrong advice and then this person has lived there for forty years has no family in risk that's not what happened he told her i don't know where you get the part and that's what her attorney told her i don't know if you get the pardon but there was an immigration attorney that he said you should you could rely on that said you wouldn't and that's the problem and so based on that she planned and going back you we won't go back without that she would have gone to trial that's what's in a declaration let me jump ahead to one other question i know we've taken your time the district court did not reach the question of strickland prejudice  let's assume let's let's play this out what your best argument on strictly prejudice when you look at her declaration and there's two best arguments it's first factual circumstances and it's that it's it's the possible sentence in this had she's been in the united states or close to forty years she's in her sixty's heard the son lives here she has no ties to korea she came here when she was a very young young young woman she's lived there a life why is her home she said indoctrination her the most level in this ring were got fifteen months in jail so it's not a case of like an ice case where if you go to trial maybe running it fifteen twenty years if you plead are you going to get eight this is the difference of if she went to trial and lost she probably would still get under a year in jail and so on so that's where the president definitely is but she'd be in the same spot though right if she were convicted at trial but that with all due respect that the point is she has the right to be advised accordingly so she can make that decision it's knowing decision it's not a decision based on misinformation it would have at least given her the chance i'm not you're saying that you should be dismissed or she would want to try i'm here saying justice requires that as we go through this process that people be advised cordingley and if they're going to plead they do it knowingly and if they're going to go to trial they do that knowingly and then the result is the result and if she gets deported after losing a trial we have no arguments but the point is she didn't get that opportunity but you would have an argument if she what you would have an argument  absolutely she would have gone to trial if she was told as roger using another case to say she should have been with virtual certainty she would have been deported she would have gone to trial and that sort of prejudice comes from thank you can't thank you clearly it states that mr isaacson said that he did receive information from the mainland attorney from the justice of the defendant's initiative of the national immigration justice center in which  he conveyed to his client that she would be deportable and eligible for discretionary waiver if she pled to the nine hundred fifty five charge he immediately the next sentence is i informed the client of this opinion so that is clearly on page seventy six of the excerpts of records i want to start my argument by paraphrasing justice alito in his concurring opinion in padilla and that is nothing is ever simple with immigration judge took a look at an aggregate offense and said it was not and i can get a fence and so what i'm submitting to the court is it was not truly clear when you have two experts in immigration law who are coming up with different conflicting opinions but what's not clear in this case i mean we have we have x had cases where we have to match up elements and we have to look and those are those are different from the statute that's actually cited as an aggravated felony so what's not clear i mean that's i think that's a first step so tell i agree with the court as we sit here today you just turn to the statute and you look at it and you see eighteen title eighteen u s c nine hundred fifty five it is there but what i'm suggesting to you this is that this attorney was a criminal to defense attorney and he he did the right thing mean it's hard to you know it's an argument i mean that's pretty court has spoken on that i understand that argument in but you know stan obligation that the supreme court post on on the defense attorneys not us and so taking what the supreme court has said and pretty you know what i mean and seeing that this is listed under the type of offenses that are deportable removable what are we supposed to do here because it looks like this is a really hard because the defense attorney here at it seems like was trying to do everything he could and to kind of cover his basis and we you know misled you know we hold the defense attorney responsible i mean i think the whole point is not to hold her miss wangel sponsible she's the one who's going to suffer the consequences and here's where i think counsel advice was still objectionable the reasonable because what he did is he told his client immediately after hearing from the mainland expert you will be deported with no discretionary relief if you plead to this charge he gave her that information and she had that and the problem is the information that came afterwards i mean miss the more a who really i mean and she wasn't just wrong she was really wrong  ok when she said you know that there is not going to be a problem this is a crime informant will be moral turpitude no problem and it seems like the supreme court was rather explicit into deal when it said when the deportation consequence is truly clear the duty to give correct advice is equally clear so i'm trying to figure out why but i have not circling back after demi moore and i think that's really where we are at least for my view after the vice given by mr du maurier you know consultation he didn't circle back and say you know what i know what she said but i think from reading it you get this conviction is right under that statute it looks like there have at least a risk of being deported and he did tell her that well not after mr mori well what he did at the change of plea was this and as he said in his declaration at the plea i turned to her and i said this one attorney people from the mainland are saying you're going to be deported the person from hawaii is saying that you may have relief i don't know who's right and he should have known you are facing a risk of deportation this is his declaration i will take this matter to trial but then we have also the other language in video which says when it's clear there is an additional for the unfortunately for the defense attorney in this circumstance to let her know more than just a risk and it comes back to the exact first question you asked what is truly clear and what is not and i i certainly defer to those that are in the immigration process and there in the immigration courts and i've seen cases replete with examples of not only attorneys but also judges that are not able to determine whether or not certain charges are truly but that but that's not the case because you have a clear statute i mean that's that's the difference i mean if we struggle on case to case if we have to interpret the statute what elements match up what elements don't match up in the crime and i grant you that but this this is a little bit different i think the question is this if if he had if the attorney had communicated the correct advice and left it at that from the mainland and we're not here she's made intelligent choice if we let's assume he didn't get any advice on the mainland at all and you communicated the incorrect advice then i think probably  the defense wins on this case because he communicated but now we have conflicting advice and the question is can you image immunize yourself from strickland and patea by saying i don't know i got two different pieces of advice and i and i go back to and if the court will indulge me the the concurring opinion of justice alito in which padilla he says reasonable competent attorney should know that it is not appropriate or responsible to hold themselves out  difficult and complicated subject matter with which they are not familiar candor concerning the limits of one's professional expertise in other words is within the range of duties reasonably expected of the defense attorneys in criminal cases well sure but the strength of the problem this case of course from a practical point of view is that we're sympathetic to the defense counsel to the right thing and it's awfully hard to say that's ineffective assistance of counsel when you're trying to be effective and you get g relying on somebody else i'm not sure about that but that's what makes this an interesting case well what about the misprision that who gave the advice on that to say that that would avoid it both of the experts gave the similar advice that a missed person would have been a better something they could have dealt with in front of an immigration court and the attorney in question here tried to get that but the prosecutor wouldn't give it to him that is correct and again this is one of the distinctions between this case in the case is that in the chen case there was there was renegotiations back and forth with whether what she would plead to in this case that's opposite that's that's that's not present so there really isn't an effort by this defend it to try some other way of going forward other than pleading as charge or going to trial so i just one last because i'd like to see what your response is th did the deportation consequences truly clear the duty to give corrected bias is equally clear so argue would if you could in your last seconds hear why you think  defense attorney here was clear the obligation to give advice is limited to those circumstances that are truly clear and i know the court has already said well it is truly clear i think that standard is unmet when you have t gratian expert attorneys that are telling you conflicting things i think it's not really clear but even though the law when you read the statute in the book says it's clear nice elation it's clear but as all attorneys know when you read things  context with other things and that's part of the concurring opinion by justice justice alito is that it is not so clear but when you read it in isolation yes it is clear but attorneys r thank you first of all if it's not clear when it's delineate in a statute that this is an aggravated felony then under put the there would never be a situation where a large clear it doesn't get any clearer than this because you say that because there's two attorneys and one and they disagree maybe one was just entirely ineffective which is the case here that doesn't make the law unclear it makes the second immigration attorney entirely ineffective and that's not  he does say to his you know client we have two lawyers and two different things but there's a risk that is not correct advice that's the unclear law advice of the wrist wrong standard correct then but what he did after is not he had heard this when consult with and meet with mr morsy and he even himself believe that to be more reliable because in the change of police colloquy in our brief when the court asked about the immigration are you aware of the immigration consequences mr isaacson chimed in and said your if i mean for the record i would like the record to reflect that at my urging my client has consulted with an immigration attorney carmen dear mercia here in honolulu in order to better ascertain the immigration consequences she has consulted with her and i've talked to mr morsi and she's trying her best to comply with the requirements so he's punting the put the requirements on to mr morsi and not the not the main a nonprofit that just sent an email never met miss w the you know for having having him do that i do feel frankly fault him for not reading the statute i mean we and i'm not here to say anything bad about anyone but he did everything he could except read the statute and he reached out to to immigration attorneys but if you read the statute i advice no one place is not correct advice it doesn't have to be wrong advice it has to be corrected voice that's what the ideals which were beyond the days when you could give noise and it's not hard on criminal defense attorneys absolutely absolutely but that's what the supreme court says is our duty and it is what it is and the sympathy we have for mr ickes and trying his best which he did i would have i would submit the sympathy for miss wang is now facing deportation to a country she hasn't lived in in forty years based off of playing under wrong belief i would submit that the sympathy for her should be greater and that justice should require that that conviction be set aside and this we start over and go about this in a way where she is informed and can make