honor may it please the court ethan shakman pro bono counsel for petitioner mr papa i would like to reserve five minutes of time for a bottle i would like to address two primary issues the ineffective assistance of coun claim and the fact that the visa petition was unlawfully revoked in this case with respect to ineffective assistance of course there are two things that we must show an adequate performance and prejudice with respect to inadequate performance we would submit your honors that this case does not even a close one to critical junctures in a proceeding below there was not just weak performance on behalf of mr pop up was nonexistent performance the first critical juncture of course was when the immigration judge suspended his adjudication of the adjustment of status application so that  counsel received that notice and did absolutely nothing made no argument did not attempt to contest it did not attempt to submit evidence to rebut it did not submit any of the evidence to his client gave him did not appeal  listed a number of reasons why it was worth thinking about these a petition and there is sufficient evidence in this record which was submitted by mr pop office part of his motion to reopen based had looked at the attachment to the adjustment of status application which is at page two seventy seven they would have seen what the business address was for usa and russia incorporated the d h i said there was existed there's evidence that another subsidiary called a c and l existed as of two thousand and three which is the time that these proceedings were taking place there's the corporate charter is the articles of incorporation there are newspaper ads  run being run by a c l at that time and again all of this evidence is detailed in our brief and we would submit that it's sufficient for there at least to be a reasonable chance that he could have rebutted the d h s  s showing if you had had competent counsel and of course that's the factual side there's also the legal basis on which mr park of could have prevailed and that is there but there simply wa no authority under the governing statute at the time section eleven fifty five to revoke mr progs position on these a petition and i think that's an issue that has not has not really been seriously contested in this case the government before the board statutory question the statutory question not precisely mr pop up did challenge the revocation but he did not raise the statutory point however your honor i am part of the government cannot rely on that that the that the alien who is subject to ineffective assistance of the nih due process as a result has the right to a remain and to reopen the proceeding under the law as it existed at the time that the due process violation occurred otherwise it would be in ha civil to remedy the due process violation and so your honor because it was absolutely obvious both both on the face of the thousand and four statute is in effect it's seven summer seventeenth two thousand and four so if you go back to the original statute and say that notice is required  to be given to you before you commence your journey to the united states correct correct how does that work when you're already here it doesn't and if you are already here and then the visa petition cannot be revoked that is what  so just to summarize my last point is that the retroactivity argument which i will turn to next is irrelevant on the on the ineffective assistance because even if it does apply retroactively mr prophet the still entitled to  is the government and its brief does not argue that it was there for way and under very clear precedent from this court the government has waived its waiver argument and i'll just waiver of waiver case i guess let's say that you're right on that wouldn't at a minimum under aventura we couldn't decide it anyway because it wasn't exhaustive but they waived it not being exhausted but that the ira didn't deal with it how can the court of appeals deal with that in the first instance with respect to ineffective assistance of counsel it's i don't think i'm talking about section  because eleven fifty five has a provision which says that the effective date of a revocation is the date that the visa petition was approved in the first place but before on or after language is in the us it's not clear whether whether what it's talking about is whether the effective date is before on or after or whether the revocation decision itself took place before on around h it is it's intended to apply to revocation decisions such as the want to mr potts case that are made before two thousand and four it's it's not clear it's all the language is modeled and that's what precisely why we argue wife and daughters thank prejudice in this case by the attorneys in actions of the visa revocation and that is because if if there is prejudice then he's eligible for some kind of relief perhaps and here's why the judge asked questions the removal hearing what he said in those five pages was he didn't read it the business address was actually his residence he admitted that the a d d address in russia he didn't know what that was it was ten years ago what that's supposed to be the parent company so you would think you would have some information on that and he also says the petition or the u s and russia company coming out to that company which is really him is petitioning for him to be immigrants he says well it really no longer exist that's what he says at the september two thousand and three hearing and the reason i bring that up is because let's just assume the visa was never revoked well what do you ultimately want is adjustment of status and to get that he needs t address in moscow this ten years ago and kind of gas that off and then he admits that u s and russia cooperation really aren't existing that's just testimony i know he said of some documents later on but that's what he tells the judge then it's hard to believe that there's any kind these other documents and i'm not saying he would change his testimony but it would be in context and i mean i don't know what it would show is i don't know ultimately but having a real lawyer that gives you  so that really is the difficulty i have my theory i hear what you're saying and it makes some sense but on the other hand i don't know how to judge that in the context of if you have a real lawyer giving you real advice like that might have been minutes of a board meeting from march of two thousand and three but he's testifying in september of two thousand and three that well the company just doesn't really exist we haven't done anything for a while and having file tax returns for three years that's just a simple statement to show that there's something something rotten here and i think even further than that is the dish recorded review the visa revocation he did have some kind of review with the district court judge so there were mr possum basically representing himself was you haven't shown case i mean the district court case was consolidated with this and that shallowness you know if it's moot i mean it's consolidated for purposes of argument is not the thing but it's seems to me i'm not sure that you know he has interesting question i don't know and if it's not binding and i think it is least perhaps could relieve the court of any fear of was there prejudice here if there was an independent review he did not appeal to  all about and that's why it came up now and this is what i was thinking about that it all goes to the exhaustion argument well we government really can't argue exhaustion if the reality has to go to the district court to argue that visa petition however it was addressed by the board circular that when they still got into it for that reason and i think so i don't think the government's weighed anything along those lines but it also gets back to the ultimate question of those five pages was there prejudice in this case and the government has argued two thousand and four talked about review via that process ok so let's just say hypothetically there's a concern about whether he had affected the systems of counsel and let's just say we were to say he didn't so what we go back and have a new i j hearing problem i think you would almost have to reach the fact that he was denied adjustment of really not so much the visa petition revocation to was in effect as but the ultimate relief that's my understanding here and just had trouble understanding how how this actually fit together so it's let's just let's just take the possibilities of what could happen here when possibilities we could say we agree with you and we don't have to figure this out ok another possibility would be of course there could be ineffective assistance of counsel but no prejudice but it seems to me to even make you know prejudiced karl would have to know what we wasn't i thought that part of the tension part of his case was moot but not the not because the judge issued a separate order of in the cases where that's how the least i approached it when i picked this case something from a colleague of mine that there's a february twenty third two thousand  yes so here's another question if to say that the if we decided there was a c and prejudice was unclear if it would go back and the issue that presumably he would get to have a hearing on and we li either no and again because the documents that were submitted afterwards and rejected mr pop off have already testified about what the documents were was another letter from his wife his kids teachers and his mother  psychologist or psychiatrist that affidavit about the emotional and mental impact on the children i believe it was that sort of a call those after the fact that mr papa testified to about his one shall i think  spoke more to breathing problems or speech problems about his daughters and how they did in school he talked about that and the problems he and his wife had and what it was you know they were out of money and all that i just don't think there's anything in this document that would result in a different conclusion i mean it's sad when you look at the pictures of mr problems kids going back to russia but at the same time i'm not sure if it changes the hardship determination factor by having these few extra documents because mr popof was asked specifically the last question by the judge is there anything else about hardship you want to tell me and the answer is no after he done that so i think the judge had a good basis to make that consideration and it wasn't there doctors should change that and now back from if it happened that never happened here i think that's even the positions opening brief talks about the house report clearly said you know they could be doing reservations treatment that way and then address the constitutional question no i think it's i think it's just straight it's clear on and because we we do first before we can even decide this case need to sort out which things belong where even though they might be referenced in more than one place so it may be that will last for supplemental briefing but if you had if you wanted to submit a letter either confirming or ranging your statement then you're welcome to do that your honor so i think it would help if we took this chronologically one step at a time and then to address both the constitutional issue which we do make in a breeze and the question of where where everything fits and we start with the fact that mr pop off was granted a visa and he had overstayed his nonimmigrant was there warrant out for him as well there was previously a warrant a state court warrant having to do with a dui but i don't none of that became w so he's in detention and he's we knew his adjustment of status application the government is trying to figure out what you know how to how to get rid of this guy and then they decide nine years after his petition has been granted and  satisfied and thus the petition was irrevocably and this goes to the constitutional argument that he relied reasonably relied on that so then nine years later they decide to revoke it and the immigration judge says ok i'm  proceeding to let the government decide what to do about the visa petition revocation and it's at that point the competent counsel would have said with respect your honor there's no authority to revoke the visa petition you focusing on is the ineffective assistance is that is that it was in effect good for him not to a not to challenge to be the revocation in any respect put in any evidence but not to object to the immigration  claim that's moot is that part that has to do with the detention because he's been released we don't know we don't argue that based on if you only look at the record that was before record but ok so if that's true that there was no abuse in revoking then we would affirm the district court except your honor with regard to the evidence there's no abuse of and that the our argument with respect to the district court is that it was erroneous for the district court to affirm the visa revocation because there was no statutory authority to revoke