whenever you really thank you very much mr chief judge may please the court my name is suited rahman i'm the appellate chief for the district of maryland appearing on behalf of the united states your honor the district court erred in dismissing the indictment in this case because there was nothing fundamentally unfair about the defendant's removal proceedings in two thousand and seven whatever procedural violations occurred during those proceedings did not actually prejudice mr lopez because he would have been deported regardless and whatever prejudice he may have suffered through immigration officials mis application of the law in finding him to be an aggravated felon was not linked to any threshold due process  because executive order capable fishel is do not violate an alien's due process rights by faithfully and correctly applying then binding circuit authority to his case in any event as three circuits have squarely held prejudice in this context should be evaluated based on the law as it was understood the time of the defendant's removal in under that standard it is clear that mr lopez was not prejudiced because he was statutorily ineligible for relief from removal and thus there was no reasonable probability that he would not have been removed accordingly we asked this court to reverse the order granting the defendant's motion to dismiss and to remand the case to the district court with instructions to reinstate the indictment i would like to begin your honour's with a discussion of u s versus wilson which i think is really the clearest authority on point in this that the defendant was statutorily ineligible for relief from removal later mr wilson reenter the united states illegally was convicted and appealed to this court and this ward held that there was no due process interest at stake in the first place in other words even though immigration officials misapplied the law in one thousand nine hundred six by not permitting mr wilson to seek to c relief even though he should have been allowed that opportunity as the supreme court later clarified in ins which is hints here he had no color will claim on appeal of his illegal re entry conviction because there was no due process interests at stake as the court held where the issue is a question of purely discretionary relief which to twelve see relief was and certainly in this case the opportunity to seek voluntary departure is no dispute about that where the interest sought is purely discretionary there is no fundamental right there is no due process interest at stake and so this court affirmed the illegal reentry convictions and wilson we would submit that this case is a direct descendant of wilson here in two thousand and seven when the defendant was subject to expedited removal binding circuit authority in this court a long line of cases going back to u s v curtsey held that maryland a second degree assault was subject to a modified categorical approach now we do not dispute here on appeal that that decision is incorrect as this court held in royal applying the supreme court's decision into camp maryland second degree assault is categorically not a crime of violence or a violent felony or an aggravated felony for purposes of the i and a but nonetheless that miss application of the law in two thousand and seven when immigration officials did applied the modified categorical approach and under this court's then binding authority correctly and faithfully found that mr lopez was an aggravated felon did not violate his due process rights because again as just chertoff noted in torres the third circuit case that we've cited in our in our pleadings a misapplication of the law without more does not constitute a fundamental miscarriage of justice or  our point your honor in saying that to camp is retroactive is to suggest that when the supreme court or a circuit court of appeals interprets a statute it is interpreted what that statute meant going back to the time of enactment so again we do not dispute that the law in effect in two thousand and seven in a theoretical sense was that mr lopez was not an aggravated felony at least in terms of a second degree assault conviction but all immigration officials have to do at least in the ninth circuit which again has a different set of law here is advise an alien of his apparent eligibility for relief from removal and again mr lopez in two thousand and seven whatever the law theoretically may have been in terms of the meaning of the aggravated felony provision of the i and a whatever theoretically it might have been the i j a the or the immigration official who is looking mr lopez in the and saying i see the documents here and you've committed a marylander second degree assault which under the modified cargo oracle bitch qualifies as an aggravated felony you mr lopez are an aggravated felony and so that immigration official did not violate mr lopez's due process interests because he advised him or didn't advise him based on the law as it currently existed as it then existed so as i say g s we do not dispute that de camp is quote unquote retroactive because it is a statutory decision of the supreme court that clarified or underscored what the ins a meant from the very time of an accident but that the fact that immigration officials misapplied the law under retroactive on collateral review the justice department's position in this appeal is that it is retroactive again as i say in a theoretical sense but that doesn't mean that mr lopez can still collaterally attack what was a perfectly valid removal order in two thousand and seven and is still a perfectly valid removal order in other words again as i say the misapplication of the law does not prejudice a defendant when he would have been deported anyway i think that's sort of my point again the idea that there was a mis application of the law does not mean that his due process rights were even violated because he was given that all the due process he was entitled to at the time right were really what the defendant is asking this court to find is that immigration officials need to predict the law they need to be able to say under current binding force circuit authority you are an aggravated felon mr lopez b guess what i don't think you are for whatever reason and so i'm going to will advise you of a purely discretionary form of relief to which you're actually not entitled to under current law that certainly can't be the right answer and so that's why there was no fundamental unfairness there was no sort of inherent breakdown in justice when mr lopez was correctly under this court's binding authority not advised of his eligibility seek voluntary departure even if we go past that point judged yes let's assume there was a due process violation here which we should not and wilson makes clear there was no due process violation let's assume one there's no prejudice to mr defer to mr lopez because every every circuit to it who addresses issue is held he would evaluate prejudice based on the law as it was understood at the time of the removal and there is no dispute in two thousand there was a due process violation in the context of or that's absolutely correct so there was a due process violation with respect to the lack of translation and then the question becomes what was the actual prejudice to the defendant as a result that lack of translation and again as the law i think is quite clear certainly in the ninth circuit and in other circuits numerous courts have held even where a defendant or an alien is deprived of his right to cede notice of the charges and so on and so forth there is no prejudice if you would have been removed regardless and we cited cases in our briefing rayas but nia is a ninth circuit case ramos is a ninth circuit case these are all decisions where again the log that's applied on the prejudicing quarry is the law at the time of the removal and so i certainly don't want to get up in here and say that it was immaterial and certainly it's not something we're proud of that miss lopez was not properly given you know his notice of of the translation of the notice of intent but the real question for this court and really for the district court is was that fundamentally unfair and there is no fundamental unfairness to a defendant for purposes of the illegal reentry statute if he would have been deported anyway so that's your honor i hope that answers your honest question and let me if i could your honor sort of add to that there's sort of an interesting timing issue here because of course mr lopez admitted in the district court or at least ice officials that he had illegally reentered in two thousand and eight after after being deported in two thousand and seven just by the accident of circumstance he wasn't encountered again until last year two thousand and fourteen but the reality is if he had actually been encountered at any point between two thousand and eight which is when he self admittedly  entered the united states illegally and two thousand and thirteen which is when the supreme court decided to camp i think even he would concede he would have no claim here today because a binding authority in this court between two thousand and eight when he legally reentered in two thousand and thirteen squarely held that he would have been still an aggravated felony and so that's why you know we talk about timing i think your honor has i think appropriately pointed out well why isn't unfair to a defender that just because he happens to be charged in two thousand and fifteen or he wasn't removed until two thousand and fifteen all of a sudden there's a different situation here i respectfully would submit the timing issue cuts both ways just because he was able to elude federal election officials for the six years between when he illegally reentered and was actually with illegal ranch very certainly shouldn't redound the defendant's benefit in this case so for all those reasons your honour's and i there are a number of cases here you know wilson is something we've cited in our briefing torres is the third circuit case which we've al  cited in our briefing another case where in one thousand nine hundred eight the defendant was removed and was denied the ability to seek discretionary relief to twelve c relief because in that time period between one thousand nine hundred six and two thousand and one when the supreme court  there was just widespread misapplication of the law immigration officials and the attorney general had taken a view that the various and ira modifications did apply retroactively that they essentially eliminated all relief and the supreme court in two thousand and one said no those elimination of relief only applies prospect of plea torres was subject to a mis application of the law in one thousand nine hundred eight when he was removed nonetheless the third circuit affirmed illegal re entry prosecution because the court said a simple miss application of the law is not he due process violation especially where educative word executive officials faithfully can correctly apply the law three entitled mr shami all shiny to a hearing where he could demonstrate his eligibility or is substantive eligibility for two twelve c relief and this court reversed his illegal re entry conviction because at the time of his removal for which he never received notice of that's clearly a due process violation he could have and probably would have secured discretionary relief that is fundamentally different in this case where in two thousand and seven which the relevant time frame here mr lopez was not entitled to any kind of relief because under this court's then binding authority he was an aggravated felony your honor so i do see my time is running down i certainly reserve some time for a bottle i would just point t court to the ninth circuit cases with element goes a gomez back to east these are all that's a seven circuit case these are all cases where essentially supports the government's position here and there is not one case that i'm aware of where  thank you your honors the facts of this case illustrate why the government is concerned about the finality of removal orders and placing undue burden zur expectations on immigration officials or so misplaced as we speak mr lopez collazo is back in mexico deported again with a new order of removal if he returns on lawfully the government can charge him with unlawful based on that new removal order but the government loses here is one criminal conviction true or three criminal history points at the most way this against the unfairness to mr lopez cl so who according to the government should be liable for a felony criminal offense because of an administrator's of decision that even the government concedes was right with error constitutional error this is the fundamental unfairness the judge hollander remedy by dismissing the indictment in this case her decision should be upheld now in concluding that mr lopez colossus removal proceeding was fundamentally unfair and the district court was correct in looking at the prejudice part of the analysis because the government does indeed can see there was a due process violation that the categorical approach that has been in place since taylor and was merely clarified by de com should apply but even under the law as it was incorrectly being applied to second degree assault by this court at the time  lopez colossus removal proceedings ice officials got it wrong officer kearns the ice official who made the determinations in this case didn't know what the modified categorical approach was let alone is there any evidence that he actually applied it now this fact supports an alternative theory by which this court could find that mr lopez collage removal proceeding was fundamentally unfair but categorical approach to the convictions in this case so that's one place your honor and then second and this is a joint appendix page five forty two orally counsel said so i am not conceding that even under the modified categorical approach which of course was never really conducted at that time it's just a fiction now in hindsight that never would have been satisfied satisfied if ever was done with this repor rule the district court did not rule on that because the district court did not have to rule on that and i would argue that counsel probably did not expand on that because counsel was able to see that the district court seemed to be on board regarding the first argument which is that in assessing prejudice we should be applying the correct law that day calm told us you all should have been applying all along that's what i'm assuming happened there but the government was clearly on notice about that alternative argument and if you look at the cross examination that i cited in my brief the cross examination elicited that argument as well officer kearns was repeatedly asked about which documents he considered and shared with the ice attorney that he had to consult with the government was on notice of this alternative argument and honestly your honor i mean that's why we drop footnotes and that's what we do it's a preserve these arguments and i don't think this is a case where under any of the law regarding waiver you can find that this issue is right way ask you with respect with the intention of the commission or so i think the government has conceded that there was there and the lack of having a spanish translator but there are arguments with respect to that is that it would be better because the laws that existed it wouldn't change the result the government admitted and i want to clarify what this is this was an in administrative proceedings so there was no courtroom there was no judge and there was no interpreter there was a piece of paper that was handed to mr lopez colossal in english and that piece of paper charged him told him what he was charged with and told him about his and the opportunity he had for administrative review were judicial review that piece of paper was not proven to have been given to him in his language which is required under  regulations and also as a practical matter the judge found that he was not being given a meaningful opportunity he wasn't given notice of the charges in a meaningful opportunity to respond so that is the constitutional due process violation and so our argument then is in assessing prejudice this court could do what judge calendar did which i believe is correct in which other courts despite what the government said has done which is to apply the correct law as we know it should have been applied at the time to say had he had the opportunity to seek judicial review he would have argued i am not an aggravated felon because second degree assault is categorically not a crime of violence and maryland well that is that is true but he still would have had the opportunity to make the argument but the point is the reasoning that judge hollander applied and this is the same reasoning that was applied in the agri lare rios case in the ninth circuit in the camacho lopez case in the ninth circuit in the cases that have applied st cyr retroactively which is there's a fifth circuit case that would have applied st cyr retroactively had the facts been different and there are two second circuit cases that have applied st cyr retroactive today as we all understand it should have been applied back then to assess what happened back then and so that's what judge hollander was saying is that assuming he sought judicial review and we all were applying the correct as the cop has now told us we should have been doing he would have gotten the opportunity for voluntary departure and then not been subject to criminal liability and then the alternative argument i've made which i feel quite strongly about because if you look at the facts of this case there is simply no way there's no evidence that anyone here actually apply the modify categorical approach so if if mr lopez kalonzo had got in judicial review and if you looked at the administrative record at the tom which did not have sheppard approved documents showing that his second degree assault was committed with violence as required by the johnson case or that  offense was actually met all of the definitions of federal theft as opposed to maryland faffed which is quite a bit broader he could have made that argument then and there's a very good chance he would have won and that is an alternative argument first of all torres was actually about on just the due process part of the analysis it wasn't about prejudice but i i think the problem with torres and the problem with so many of the cases that the government relies on that seek to make a distinction between the right to discretionary relief and just remove ability in general in this kind of limit we're going to place a limit on how we as a criminal court are going to assess criminal liability based on whether the relief you  well i'm sorry wilson i apologize the wilson case of the government reference in judgments is concurrence she made this exact point that if what we're looking at is fundamental fairness and if we're looking at what the purpose of the mendoza lopez case is mendoza lopez is the supreme court case that brought us all here that's the case that said yes we can raise the fairness of a removal order as a defen in a thirteen twenty six proceeding there's absolutely no reason to say you know it's ok for this proceeding to be fundamentally unfair if all you were seeking was discretionary relief so just because what you were seeking back then was discretionary relief a judge could be biased a judge could say i'm not going to give you the relief because i don't like you because you're muslim because a judge could rely on the false knowingly false testimony we judgments was very clear in that concurrence and she was saying i don't believe that circuit case the st cyr cases is because of this think because some of those cases make a distinction between aliens who could have gotten discretionary relief versus aliens who simply would not have been removed at all  retroactively st cyr has been applied retroactively all of these courts all in all of the cases in which the supreme court cases have just clarified what was supposed to be happening back of then courts apply them retroactively and in some cases and then we'll send it to the court in wilson and is the court wilson didn't actually say that st cyr could not be applied retroactively i think that's important when you're going back and reading the w case to understand that wilson did hold that he did not believe there was a due process right to discretionary relief that wilson was looking at whether there was a due process violation we have a due process violation amid due process violation in our case wilson had the opportunity back then to say st cyr can't be applied retroactively we're not going to we're not going to apply a clarification because back then it was apparent to everybody ira had just been pa the had been passed it was apparent to everybody that folks who thought they might have a qualify for two twelve c relief no longer qualify for twelve c relief so the wilson case could have done that and it did not focused on the fact that it didn't think that the due process violation could come from a denial of discretionary relief then i want to really focus the court's attention on this is something that was also a focus of the judge motss concurrence in the wilson case and it was also a focus of the supreme court in mendoza lopez and it's a point that i think is lost frequently but it was i think very nicely addressed  decision is that what we're talking about now is criminal liability we're talking about what standard will we accept we before saying ok we will rely on a decision an administrative decision to cause liability for a felony federal law fans we are not attacking even though this is called the collateral attack in the language of thirteen twenty sixty were not collaterally attack in the removal order the removal order stands mr lopez clause who actually could have been removed again based on a reinstatement of that order if ice took so cho chose to do that what we're talking about is criminal liability and whether someone who was subjected to a pr particularly someone subjected to a proceeding like the expedite the administrative proceeding that mr lopez colossal was subjected to whether they should then in the future be criminally liable when there were mistakes made at that he at that time even if practically speaking those mistakes could not have been remedied at that time what we're saying is we know that what happened back then was wrong he was charged as being an aggravated felon those the two aggravated felony convictions were the only charges on his notice of intent we know he was not an aggravated felon and it doesn't matter and it shouldn't matter that his only relief was discretionary and that he would have been removed regardless that he could have been remove simply for entering without inspection because that wasn't what he was charged with and we know that this whole it ministr proceeding that was essentially we're initiated by the ice officers were the judge and the jury and the prosecutor in this case all happened on a piece of paper that was given to mr lopez colossal while he was in prison and he had ten days to respond to this piece of paper that was in a language he didn't understand what we're saying is you know we're sorry that this may seem unfair to the ice officials who just were trying to do lopez so this is something that i neglected to highlight in my brief it really underscores exactly what i was saying which is mendoza thought no fifteen basically expressed even with the new safeguards that mendoza lopez was was creating express or a remaining concern with the mere idea of criminal liability resting on an administrative decision and the court said even with the safeguard of a collateral attack the use of the result of an administrative proceeding to establish an element of a criminal offense is troubling the propriety of using an administrative decision in such a way remains open to question and i think that in the you know perhaps height and embrace of really saying you know we're going to treat criminal aliens in particular as really bad people and really get them out of here as quickly as we can i think a lot of courts may have may be losing sight of that mean that is what the supreme court had in mind when it was issuing its decision and saying that you know at least in these cases where there has not been judicial review we are going to take a very careful look and make sure that everything that happened happened in a fair way i also want another fiction i think the government relies on and i believe judge you ask the court the government about this is about other collateral attacks a cloud of attacks and other contexts like and and the government rely very heavily on the foot case and foot is completely and opposite as our collateral attacks in those contacts so foot first of all involved in that miscarriage of justice basis for collateral for retroactivity in a collateral attack and that's a basis you rely on when you don't have a constitutional violation so in our case we do have a constitutional violation we have a due process violation admitted by the government so for it should not apply for that reason but more importantly as i said before we are not actually collaterally attacking the removal order and we're not collaterally attacking any criminal convictions this is a direct review of a criminal case and judge hollander was in fact even though the government criticizes her for doing this project holder was providing direct review of mr lopez  colossus removal proceedings but she was doing that because he has he was deprived of his right to direct review because he wasn't given notice of that right in a language he could understand and that's exactly what mendoza lopez said is that if you're deprived of that right then the district you it actually could be used to support our theory and that is that foote was saying that when you're looking at this miscarriage of justice basis of retroactivity that the type of fundamental defect that would warrant a miscarriage of justice finding is a defect involving actual innocence based on the change in the law and what for the example that foot gives is that if someone has been convicted of a crime and then years later the same conduct no longer violates the crime that person should not remain convicted of that crime and that century what we have here mr lopez colossal was removed as an aggravated felon and we now know based on  clarification not even a change of the law but he was not so that particular removal order should not form the basis for prosecution under thirteen twenty six that thank you very much your honor i know my time is limited and there are a number of issues on the table i would just say at the outset of course we respect the district court's careful attention to this case we do believe it was quite wrong the holding that the district court  rendered in this case would create a circuit split with numerous other circuits it is unprecedented in the way that it evaluated due process and innovate in the way that it evaluated prejudice it would be bad law and the ninth circuit which is really the one actually acknowledges a due process right to advisement in this contest that of the second circuit no other circuit even recognizes that right so it contravenes of this court's binding authority in wilson and that is reason enough for this court to reverse but even if just for argument's sake wrong so really what that the defendant is asking this court to do is to affirm a holding that has absolutely no president in this country absolutely no precedent in this country so i will leave that as a doctrinal matter let me talk about some of the issues that that the defense council has raised as far as the argument that ice misapplied existing law as i appreciate your questions about waiver that claim is absolutely waived it was not raised in the defendant's motion the indictment which is the operative motion that he needs to file it wasn't in there the one place that shows up is join appendix one ninety six footnote eleven which is a supplemental reply pleading it's not even his reply to the original government opposition it was never really raised during the motions hearing which lasted hundreds of pages in the transcript of the court has seen it this was a throwaway argument it's not a preservation argument it's a throwaway argument and a stretch fracture as you observed in vinson just a few weeks ago defendant is now talking about on appeal where we never had an opportunity to really develop the record on that score this court certainly should not excuse the waiver and in any event if you look at page sixty two of the joint appendix that document the charge summary in my view clearly is a shepherd document it's a formal charging document signed by a judicial officer that expressly incorporates the underlying officers statement of probable cause so i don't want to spend too much time on that judge diaz torres is correct  is absolutely correct and indeed this court and judge gregory sided torres affirmatively and positively in the decision so again let's think about what the defendant is asking this court to do rip open a circuit split with a third circuit and torres with the seventh circuit in back to east with the first circuit in sort of a tale with the ninth circuit even an application of due process principles that are unique to the ninth circuit which are not embraced by this court in wilson or in al shami it is absolutely unprecedented and it would create your honour's very difficult problems for law enforcement i was a little bit surprised that defense counsel talked about issues that are outside of the record  i didn't know that mr lopez had been deported with a new removal order at least what i write heard it's not in the record but this is more about than just one criminal case because of this court finds that mr lopez is entitled to relief then every single person who is similarly situated upon a legal reentry even if its removal was way back in one thousand nine hundred eight when this court decided kersey were two thousand this court would be saying that that removal was somehow fundamentally unfair when it wasn't when this court on bonk and us vs coleman said maryland second degree assault is subject to a modified categorical approach how our immigration officials are supposed to know better than this court on block well they're not i guess you  camp which was referenced earlier in this argument statutory decisions come out of the circuit courts every single day and if every single change in statutory law entitles every single illegal defendant in this country to collaterally attack the prior removal it is a floodgates argument right because every single day we have new decisions of statutory decision coming up some of which are contested even the ninth circuit is a good example of that if you look at gomez which is one of the cases we cite in our brief existing ninth circuit authority at the time of mr gomez's removal in two thousand and six how that his prior child sex offense was was an aggravated felony and the ninth circuit actually s hifted a couple years later four years after mr gomez's removal on bond the court changed its view of whether that particular offense qualified and then of course de camp comes out and overrule the on behind circuit so my point is every single day hardworking jurists just like the members of this panel have decisions about statutory interpretation sometimes you agree sometimes you disagree the question is are immigration officials acting fundamentally unfairly when they faithfully and correctly apply this court's then binding authority and where mr lopez at the time of his removal in two thousand and seven would not have secured relief on direct appeal  so i hope that answers your honour's question sort of understand intuitively why you know it seems like well gosh isn't it unfair that if the law does shift over time that the defendant should get the benefit of that respectfully there's a reason why no court has held