on this case we are again dealing with an illegal re entry case where we filed to dismiss the indictment on the speedy trial at ground zero and also filed a motion to dismiss based on a lateral attack of the underlying  erred by denying his motion to find the underlying removal order invalid and dismissed the case on that ground on mr escott case again i would like to start with the big picture and then move into the details the big picture in this case  never received notice of his removal hearing back in october two thousand and four so he was ordered removed in absentia a few months later and early two thousand and five the government in this case faults mr now for really everything that that's happened in this case he made some bad choices and without a doubt mr rest you know did make some bad choices it's a little bit of a simplistic to simplistic to blame everything on him when you look at the details of this case and frankly if everybody always made the right choices nobody in this courtroom would even have a job so the question i'd like the court to consider is not whether mr astley not made bad choices when it comes to looking at his underlying removal order but did the administrative agency father laws and regulations that were designed to provide him with due process and it the answer is no then mr mr astley now should have a chance to have those proceedings that are fair and our b now could collaterally attack the validity of the prior removal order if he can show that he exhausted administrative remedies that may have been available to seek relief that the deportation proceeding at which the order was issued deprive him of the opportunity for judicial review and the entry of the order was fundamentally unfair that meaning that due process was violated and he suffered actual prejudice in mr s b nas case digging into the details argument is essentially that there was nothing to exhaust due to the flawed procedures and the failure by the administrative agency to follow the rules and the law in this case so his illegal of his proceedings with immigration began all the way back in october two thousand and four the agency issued a notice to appear and that ordered him to appear before an immigration judge in san antonio at a dat a time to be so why he should not be removed from the united states he was then released on his own recognizance the notice to appear not stating the time or place to appear is in stark contrast to any other court is there really any other court where you would get that sort of very vague notice with no expectation of when you would get a notice where the notice would tell you to appear and when in the district court document thirty five exhibit three the notice to appear itself doesn't even have a certificate of service again we're going back into these regulations because certificates of service are designed to make sure you do get a notice of  the proceedings so if the initial charging document doesn't even say that it was served on mr s b now how do we know it was actually served on him or he ever even got a copy of it same same document exhibit four again october t the agent who filed that form i eight hundred and thirty did not check the box that upon release from custody the respondent was reminded of the requirements in section two hundred and thirty nine which are the address change requirements  and was provided with a change of address form or thirty three so we don't even have evidence that those forms were provided to mr s b in all all we know for all we know he wasn't provided the notice to appear or an actual address change form or told that he had an obligation to provide them with his address again going back to that same document thirty five the government is over for a the order for release on o cognisance again when you look real closely there's no signed acknowledgment by the at the bottom where there should be all these little things add up to a situation where it looks like we have very little information on what mr f b i was actually told or given all the way back in two thousand and four on this case the judge denied mr ask you know was a motion to dismiss the motion dismissed without a hearing on both issues and other words we didn't have a speedy trial of hearing and we didn't have a hearing on the attack on the underlying removal order one note that i do think is important the record does show that the immigration judge order from two thousand and five was in error to the extent that it does say that the s b now was notified of his responsibility to tell the court about his address change  number for the court he was an advisor of any sort of relief that he might be eligible for and for those reasons his failure to exhaust should be excused what about the prejudice question even eligible for a voluntary departure given when he was coming and going from the united states yeah the basic eligibility for voluntary departure is pre hearing at least which is before an individual hearing is that you just he could've applied for voluntary departure he could have afforded applied for asylum and we think that based on those factors he would have had a reasonable likelihood of having a different outcome than the end of censure removal or there any requirement that he be in the united states for any period of time not for voluntary departure pre hearing if there is a post tiering request for voluntary departure then you have to have one year of presence in the united states so i guess on that one whether he would have gotten voluntary departure would have depended i suppose on if you requested pre hearing voluntary departure our argument would be based on his biographic and for the time he would been likely if he would have done post here in other words requested an asylum hearing  would not have had a year in the us at that point so then he would not have been eligible for voluntary departure that is an important distinction i suppose so with that said i will reserve the rest of my time for a bottle authorities and on that basis excuse his failure to exhaust remedies he also asks once again that us a conspiracy between ice in the department of justice based on a few weeks civil detention the courts have declined to do so both clams starting with the collateral challenge once again it's the defendant's burden to prove all three of the  d factors he suggested that he should be excused from his failure to exhaust remedies or pursue judicial review because the agent failed to check a box which indicated that mr asp meet with the deportation officer periodical a and he failed to do so if he had done so he could have learned through that office or about the pending hearing i'm not going to spend a whole lot of time on probably one or two because i think so clear that even if even if you find there was some technical problem with the forms that excuse exhaustion of remedies and i'm not saying there are it wasn't the kind of  defect that would be fundamentally unfair it's not fundamentally unfair to say that if you make yourself completely unbreachable and disappear to a different state without giving immigration authorities any way to possibly get a hold of you that you're not going to get noticed if you're hearing any reasonable person would understand that and it's not fundamentally unfair to hold him to the consequences of that choice and there's not any actual prejudice  again voluntary departure is awaiting of positive and negative equity and we look at this and this is someone who had multiple legal crossings numerous crimes committed in the united states no real mitigating factors apparently and i think most significantly this is someone who was previously granted voluntary departure he got the relief that he supposedly would ask for now he immediately flouted it and turned right around and came back to the united states within two weeks so it's hard to say that it's reasonably likely that image any immigration judge is going to say ok even though you flouted this this privilege this relief the last time around i'm going to give you the exact same relief again there's no reasonable basis to think that a judge would do that so there's no prejudice care even if there was a due process violation nor is there any particularly egregious claims of due process violation so again if you're inclined to consider some of the other circuits that if you don't need prejudice when there's a particularly egre particular agreed as we're talking about some minor defects and the forms there's no allegation here that government agents acting in bad faith lied to him or did something extreme in order to prevent him from asserting his right honor well i asked him if there was any requirement that the only and be present for any period of time before in order to be eligible for voluntary departure and he said that there's something should between pre hearing requests and itself i'd like to talk briefly about speedy trial i agree with largely talked about this before said the the facts and the law are identical i just want to reiterate a couple of key points one of which is that mr aspinall  he had a legally re entered and there's no basis to believe that from the get go this was some sort of conspiracy there was a lawful basis to detain him originally and the case was out there   as for the evidence here hearing this case is a little different in that there was no evidentiary hearing on either issue but it was not an abuse of discretion for the judge to decide without a hearing the judge told that he was held for well over three weeks and then charged basically all of the facts that would be relevant to making the speedy trial a determination were already apparent so there was no reason that the judge needed to hold a hearing to develop the facts on that issue ask or of collateral attack it was readily apparent and the record has been on failed to give an address fail to show up to his meeting with the deportation  s that he would have been able to explore at hearing it's just sort of again a conclusory claim that well if we'd had hearing we could have had a fishing expedition and maybe some  very well i'm not i'd say you're welcome to make it if you wish are very well thank you for your argument in the case of mit