mr rodriguez says motion to dismiss based upon a defective prior deportation but was defective about the deportation and that your honor the emigration judge at that or a joint hearing advised mr rodriguez that there was nothing he could do for him because he did not have the seven years residentially that would have allowed discretionary review under section two twelve sane in fact with the i g told your client was that he couldn't recommend to twelfth application for twelve really years residency requirement the immigration judge did not apparently take into consideration the the law not the case law but the law at that time which said the tight s to appeal he told him that he was not yet eligible for relief who do you think there was an obligation to say but if you file an appeal maybe it'll take long enough so  he said you have a right to appeal and your client said yes i'm going to appeal and he was given the paperwork and he never filed one correct and the record is silent chawner as to what may have played into that decision what is on is nothing did or the i gave to discourage your client from yana with all due respect that's where i am submitting to this court that what he did do was to tell him that it was hopeless to appeal and the government in what state what statement do you construe the thing the statement of the immigration court your honor trial going in and having the district court judge side well you could appeal but not tell us like that is off it's like you saying you're not eligible for probation it doesn't say anything about whether you have a grounds for an immigration judge and that he had no choice but to deporting that is the equivalent of saying it's useless situ crew i'm sorry that was true actually no your honor because again made clear in the house of pain and assuming all of that is correct which is it's true there was nothing he could do for him at that point there was perhaps nothing that that lies the rub in this case a drug there's a problem it is the problem and i have to candidly concede that but what i am what i am saying to the court is a the state of the law at the end was that the seven years ran from the application the seven years r and that it continued to run correct and had must corroborate dissipate old contrary to the government's position he would have become eligible for discretionary relief he had possible grounds for two twelve  which is all this court to say that anyone need demonstrate so we come back to he did not appeal is that the government calls it the the fatal flaw here but we're looking at god i wish i wish that word the standard but i would say we only need make the standard that the judge should not have discouraged him from appealing he should have simply said you have the right to appeal  extraordinary circumstances that would make the defendant qualify for this relief and deportation that is not present in the record either in another ground to uphold the just a court's decision thank you knight if i may very briefly respond to government characterizes this is not a waiver but by common definition the waiver is a failure to exercise a right there is a waiver here  however the government chooses to characterize it and a waiver of a right must be knowing an intelligent this was why he was not knowing and intelligent because of the incorrect of residential in this country ownership of a home employment a wife two or three children i who are united states citizens who are probably still in th