relies heavily and gratefully on the assistance of our our friends and colleagues in the district courts and from the other circuits and we're very fortunate to have judge form ski i want also thank the judge roof sense yeah because of my oversight i was so eager to get into the the first two cases i forgot to thank her publicly but we're grateful for her assistance as well in the sitting if counsel are ready will will start with united states my name is susan cosell and i represent bartolo progress on this appeal i would like to reserve three minutes for a bottle time for granted this court should reverse the defendant's conviction and th dismissal of the indictment on the failure to dismiss the indictment in this case for two principal reasons ineffective assistance of counsel in the immigration proceeding and the attendant prejudice by that ineffective assistance of counsel violated the appellant due process rights in that proceeding and the district court erred in finding that the defendant had not shown a likelihood of success on the merit with regard to his prejudiced claim what is the prejudice claim that relief would have been granted correct that he would have had a likelihood of success on the merits had he had an opportunity to present his case for a two twelve c waiver before the immigration court and or the b i let me just ask a preliminary question one that has not as i only as a matter of legislative grace so if there is no due process right to be considered her to twelve c really why would there be a right to effective assistance of counsel in pursuit of two twelve se while your honor because since the taurus case other courts and including courts from the circuit have seemingly to partick from such a strict analysis there's a circuit split on this force for example this court in the ranchi case well in richardson this court held that it was an open question as to whether an alien could a stab you have a right to effective assistance of counsel period into twelve z situation yes your honor and that that comes from the mendez lopez supreme court decision which held that  an alien does have a right to collaterally attack a an order of deportation where he has exhausted it's administratively a reasonable proceeding but this is a two twelve  there is a distinction i don't want to be labor and while you're on it we we would argue that a two twelve c application although discretionary we're not we're not before the court say that this court must grant him to twelve seri we're merely saying that he never had an opportunity before the immigration tribunals to make a valid to twelve c application and we have no idea whether that application would have or would not have been successful well your honor we don't have any certainty as to whether it would have however if we look at the two prongs of the test ineffective assistance of counsel on the one hand and prejudice on the other i think we have certainly a stablished at least the threshold for showing that he had a likelihood of success for example to show ineffective assistance of counsel and alien must show that any simplistic application it is not a time consuming intensive exhaustive legal treatise particularly in this case where this was based on the acquisition of seven years of residence and all that mystically felt the immigration council had to do was to essentially file a piece of paper which attached the relevant document w it is very clear that when an attorney files a notice of appearance to appear in a proceeding that attorney is the attorney of record in that case unless and until a court relieved when he said we're not filing a brief to me he said we're not filing a brief and so on but he didn't bring friends there is i guess the client didn't pay him to follow a brief they decided not to mere again myriad speculation as to what my if you don't the response should should be here and it's just the silence on this issue was deafening on both sides i think the government gets to it or page twenty of a fifty seven page brief the matter of requirements when you're alleging ineffective assistance the affidavit that is required under lozada to show the scope of the representation to see to show to let notify council that an allegation of in effect of assistance is being made against it but we have nothing in this record that shows the scope of his representation you speculate that maybe because he he filed a notice of appeal he is bound ethically or whatever to continue to represent we don't know that and we have very specific procedure requirements to show in effect of you must show both we have procedural requirements and substantive requirements and this case is all about the substantive requirements nobody has other than the government mentions of page twenty the affidavit which i've just alluded to but that that's really all judge was never dealt with a procedural quiet meant i just wonder why this is lacking here well your honor the there are cases that relax the lozada requirements in certain circumstances in this case mr perez did not even know that there was an order of deportation against him the moment he was arrested in boston in two thousand and seven well why is that i mean that the notice was sent to his lawyer and i thought the case law stablish is that noticed the counsel was chargeable to the client well your honor the there period of time that elapsed miss mr perez was in this country from nineteen eighty one to two thousand and seven and while it is and seven mr perez was allowed to travel to the dominican republic and return twice so the government's intransigence or incompetence is what what is the key to his victory here though no your honor because in addition they returned his immigration bomb so consequently there there was a real affirmative act reasonably conclude that that his immigration bond was overturned and that he traveled out of the country twice between after allegedly there was a final order of the or can now be you know in he was arrested in boston and shortly thereafter spirited up to maine where he had no support systems no relatives and right then he said to the dominican republic where he same type of application they filed in this case from the dominican without trying to it he didn't have the illegally or maybe you're telling us otherwise you're saying he had his illegal reentry to the united states was a precondition to in any way shape or form in the federal court system i mean he had to re illegally reenter the country in order to have his day in court be heard your honor it was his understanding that while out of the united states hundred ninety seven whichever date we use for the final order and when in that opinion the b i a telegraph its concern about this case when he came back to the united states states two thousand  mister perez was blissfully unaware of that he had thought his immigration proceedings had concluded in his favor he no longer was at the address in the bronx where he had lived at the beginning not in ten years earlier actually in one thousand well it isn't that i mean what is the relevance of that for purposes of of of either illegal reentry after a deportation to how it is he didn't know about it and he didn't know about it why does it does that help you though i mean we decided way back in one nine hundred ninety and see work vs ins and i'm quoting where an alien is represented by counsel notice to counsel is deemed to be notice to the alien he so he can as i understand that precedent he can't hide behind the fact that well my lawyer may have gotten some paperwork but i didn't know anything about it that's  honor i would respectfully disagree since we are arguing ineffective assistance of counsel from the moment that mr cliff feld failed to move to reopen before the when the matter was continued throughout the course of what seemed to be a one sided relationship of mr perez trying to find out what occurred in his case being assured that everything was fine and when he thousand and seven in boston then he was sent to the dominican republic in two thousand and seven and while in the dominican republic he does nothing of a judicial nature there's no no effort for him to do the united states they do not have the ability to reopen their proceedings judicial review i'm talking about you dish will review you your very careful and i respect your candor because you're been very adept at pointing out that he may not have had administrative opportunities available to him but that doesn't preclude judicial the opportunity to be heard judicially in a court of law this is a this is a criminal case this is the crown of us yes and thirteen thirteen twenty sixty absolutely does give him the right to do that but i believe judge hardiman is question is that before there was a criminal proceeding against him for re entry and while he was in the dominican republic why did he not avail himself of the even before he was deported to the crib to the dominican republic upolu there was a five month period of time between the order of deportation and so he was here for five months where he could have done something and did well your honor he didn't not do anything but it is true that and a motion to reopen the case was not filed by who we don't know how long clay field represented him we don't know if he represented him one day after the notice of appeal to the beyond he was filed way back but in the dark ages we don't know that because  requirement were not complied with your honor what we do know is that the b i sent both the letter extending the time to file a brief or to move to reopen to mystically felt as the designated attorney for the alyea and they sent the order which affirmed the immigration judge and they noted in the order the respondent did not bother briefed on appeal and although it has now been more than seven years since his admission as a lawful permanent resident he has not filed a motion to remap and neither has he filed an application for a section two twelve c relief or any other supporting materials to establish a prime and was noted and in less a court of competent jurisdiction relieved him of the obligation to ethically and legally represent that his his engagement continued beyond the time that he wrote and said we're not filing a brief correct i think it continued certainly when is it will end is it a period after he received the ethical duty to convey the order of deportation the fact of its existence to the fore for the former client absolutely and with and then where does the does it ever end does it go beyond that or well adrian i don't think we have to speculate as to how far further it goes it certainly goes to that it certainly goes to receiving the opinion of the b i and then conveying it to the defendant after years in which he could have done all the things that the court has inquired about it he could have attended an attorney most serious open to present the evidence which we believe would clearly have shown a likelihood of success the prejudice he would have been able to surely would have shown he was would have been granted what is admittedly a matter of executive branch grace and it is according to this court the standard is not that stringent for showing likelihood of success and he had many many factors in his favor the only negative factor was of course that is correct your honor they were not but the probation officer went out of his way to submit material to the immigration court which is not i believe the norm which explained how mr pearl as had lived really an exemplary life and noting that when he was picked up for a speeding ticket in two thousand and  morning may please the court i'm assisting united states attorney stephen g sanders on behalf of the united states the appellee in this matter let me start off first judge perry i will endeavor to write shorter briefs i don't know i wasn't to complain about the length of the briefs necessarily the lack of them for on what i considered the it would consider to be a strong dog and it's my it is my first point when i get to my argument section and let me start there because it underscores the entire problem with the argument we just south and that is most all of what she has told you except the probation letter is there's no evidence of the record it comes from mistress for mr self say so in other words there is no evidence about what her client knew and when the argument that her client didn't learn until he was arrested in two thousand and six is something she asserted in a brief without any affidavit without any proof and is now relying on her own sworn assertions from her motion in the district court as evidence the attorney and in other words ethics charges are true there are three requirements you have to file an affidavit setting forth what the retainer agreement was in other words you have to swear under oath that you in fact agree with your attorney that your attorney would do would do x y and z the very thing you're claiming here she failed to do that's requirement number one number two if you have to give notice to the attorney and an opportunity for the attorney to respond those two are usually not relax the third one that is to file an ethics complaint or explain your provide a real reason why explanation for not doing so it's a third one that's relaxed but if if you have an attorney representing human a proceeding and your attorney never lets you know about what's going on in the proceeding how can you have  about what the proper procedure is but isn't that the defense in this case but the defend the assertion in this case from counsel is that the client didn't know but there's no proof in this record that that's true precisely because there's no evidence of record i'll keep the case alive but you're on your own you were stating there you heard you'll be eligible for two trials the relief as of august first and at that time you either got to file a pro se or you've got to hire another lawyer that may be in the context of this case  to follow the two twelve waiver it's mind boggling that a lawyer wouldn't do that who has appears and in the case and that excuses a being made for the lawyers on the i'm not making fuel for the lawyers conduct i don't i have to know what the agreement was under the law about requirements in order to understand that but let me let me make a response that if i am an attorney in a civil case let's say i've defended after civil trial i my client got socked with that two million dollar judgment and i'm hired to do the appeal if during the course of that appeal i discover evidence outside the record that shows that the plaintiff defrauded the court and got a judgment that the plaintiff wasn't entitled to that's not something i can write on direct appeal or i have to file it will succeed the motion but that mean that well not be within the scope of my of what i was supposed to do on appeal so i've been attorney what i do then right i either have to tell the client i did the client the information i say if you want me to file a rule sixty the motion you've got to pay me to do it if you don't to handle the appeal but you're on your own with respect to the will sixty be and the assertion here but you have still have your parents entered and if something happens in the case which is incredibly favorable to the client doesn't an attorney have an obligation to notify the that that that i agree with that absolutely but there's no proof in this record that the attorney didn't inform the client that's all attorney hearsay through miska cells i'm sworn assertions in her brief and her argument here there's never been an a the the that's that legal pass comply with the standard for ineffective assistance of counsel which is a reasonable likelihood that the result would have been different if the error in the deportation proceeding had not occurred because of the discretionary chair the relief plus the fact that there is a serious drug offense i think you have to make what's called a strong showing that's at least the standard that the second circuit and perhaps a plus it's not just eligibility you have to make a strong showing and therefore it's that there's a reasonable probability that he could have made a strong showing and you know what is our standard and reveal in other words that the we have the right to to look at the fact is and say the was wrong we believe that there was a reasonable likelihood that the result could have been different your center of your plenary and you could do that but i would i would just ask this court to consider one thing many of the factors that were put forward as mitigating factors or factors in the in mr presence favor are all things that accumulated after nine hundred ninety and those are added as a matter of law improper factors to consider in other words most of this claim of equity is based on equities that accru after the b i affirmed the order of deportation and the second circuit has a couple of cases copeland and scott make clear that the claim of prejudice have to be analyzed as of the time the act that the attorney should have taken should have been taken in other words as i assume august first one thousand nine hundred eighty if he should have filed a motion to remain and then we look at what the motion to remand and the two trials the application would have looked like as of that date and as of that date what did he have he had seven years in the in the united states right get committed a serious drug offense within the first four years and he had crossed a sudden your threshold by taking an appeal that the the i found was meritless based upon the decision of the would have immigration p hundred when he's now in the country for nine years and was done all these the things and had a letter from the probation officer and he was working at a family eccentric and he had an explanation that could have been presented in one thousand ninety eight after the seven years that this is the reason why he committed the crime the and that we can look at it as a nine hundred ninety but it doesn't make this any better of a case from from the defendant's point of view because he would have had a couple more years of and i assume but this points up another issue that you're going to raise the reason why the defendant committed the offense to leave assertions of duress and all that again appear nowhere in the record they are simply were were asserted in mr sauls motion to dismiss in the district court without citation to any evidence and then repeated in her brief on appeal it's clear that the probation office wrote a letter on his behalf but let's look at that letter carefully he was on supervision for about seven months when they wrote that letter he had gotten employment only two months earlier so based on that and two months of employment they wrote a letter urging you know that that that that the immigration authorities look favorably on it's petition that's on the record but it's not as  mr pres makes it makes it out to be and the other factors that i started to that serious drug offense committed within a short time of arrival in the us plus filing an appeal the sole purpose purpose of which appears to be from from a objective review of the notice of appeal appears to have been to drag this thing out well that is that's fine that he's a vessel he's allowed to you know that's that's just a good lawyer and i mean i don't know how you can hold out against them i mean said you're not allowed to do that you not allowed to try to achieve your say your seven years to make yourself potentially eligible for to twelve relief by file exercising your constitutional right to an appeal  what they said is if the b i declined the motion to open even for the most motion to reopen even for the most favorably situated alium and they declined that motion because that alien crossed the seven your threshold only by taking merit with appeals and that's what dragged out the time that is absolutely within the b i use discretion and i agree that doesn't mean melody just means they might deny use to twelve request right from the no they might deny a motion to reopen even to have a considered and this resources so i think the so was the crux of your argument then that we should not assume that this lawyer was engaged to worked pro bono to do what was needed to try to put together a two twelve placation not without the affidavit the levada requires and in fact if we've never applied lozada to this type of procedural posture have we in thirteen twenty sixteen no but let me give you a reason why i think it should apply and this goes back to the back of the questions you had of mr saul regarding what happened between two thousand and six and two thousand and seven he had five months judge very pointed out in which and i wrote in my brief if you thought you had been in this country illegally you know and legally for some sixteen seventeen years and you suddenly got picked up to put in immigration custody one would think that you would start filing motions you could apply file a motion to reopen you could file a hate me if petition and seek a stay of deportation did none of those things if he had moved to reopen it it's that time he would have been subject to a vote requirement and he bypassed that opportunity and we failed to exhaust and instead is trying to get a better standard were you affected so in zero seven when he's about to be shipped out of the country he should at that time step forward and say look the premise upon which you're deportee me is invalid right here five months he was picked up in zero six and he wasn't in november of zero six and he wasn't sent out of the country until april of zero seven and he did and what would you concede he could have done then to vindicate his rights he could have filed a motion to reopen with the b i a on the basis of the very ineffective if it's the counsel claim he's pressing here but had he taken that route he would have had to satisfy at least the first two of our requirements and we would have had a sworn affidavit setting forth exactly what happened and now because he chose not to do that and to illegally enter and then to file a thirteen thousand and sixteen motion he feaking to rely on solely the fact that different tourney remained in place for him and have you have the court assume just as a matter of law almost that there was a duty on this attorney to follow through and file that motion dream and we have no could always come back years later and say my attorney was forced to do this and so to claim now that this simple fact that the attorney filed a notice of appeal and remains in place is sufficient goes against the very decision that created the requirements that six the motion there have been affidavits by the defendant and hearings where there was sworn testimony it wasn't done through attorney proffer an attorney say so which is the proper way of creating a record in the district court that's the problem here i think even in the second circuit  case on which mr per as he relies heavily counsel agreed to file a two twelve's the application and didn't that was in the record it was in the record may respond with one for the point america my time is up not only that but that defendant learned right that that his counsel had taken that step and had a motion to reopen pending when he was deported from the country so that defendant actually tried to exhaust his his ineffectiveness claim before leaving and that was why he just a few points you're honest the fact is that counsel did know he was to follow to twelve c application because he filed one he filed one that had no merit before the immigration court he filed a two twelve c application based on the fact that mr pereira's was either married to or about to marry a lawful permanent resident and had an american was changed circumstance application that's where he switched well what i'm saying is kept counsel for the government argues that there is nothing to show that mr cleve felt was retained to file a two twelve c application to assume that what address mr sanders for he says that there's nothing in the record there's no evidence of record well would you say to that well your honor first the evidence of record to show that mr cleek felt was obligated to act at all of this time in mr perez is the half is the fact that when the b i sent the letter to him indicating he had thirty days  to to file a brief move to reopen and when they ought that their opinion in one nine hundred ninety alluding to the fact that essentially their hands were tied in granting any relief or taking any appearance obligates an attorney to do all things that are legally and ethically apply couple to the defense or representation of his client and if he filed this are sorry if you filed a  by his client to file the additional two twelve c after the seven year they had passed where is the evidence of record of that your honor i would suggest that once the appellate court indicated that that should be filed if he was not engaged to do so he needed to file something with the a indicating that he was no longer attorney of record for m you're right on that why shouldn't we say that your client was obliged in the five month period during zero six or zero seven to bring the very attack to the validity hundred ninety deportation order that he now brings your honor i think that that answer is to some degree understanding what it's like for somebody who's been in the country for twenty years to be arrested on a speeding ticket and to be sent not to boston but the maine and to try and figure out why he is they are and what happened to marshal the resources of his family who were is in new york to try and contact the stakes couldn't be higher he's about to be sent out of the country you're not you're suggesting us because he's in maine he can't be expected to have hired a lawyer to or called his family and says look they're going to ship me out of the country and it's crazy because they're going to do it on this one nine hundred ninety order and as you know the lawyer never told me about that you were going to we're going to give him a pass on that when the stakes could not have been higher you know i don't know what i'm saying is elliot who speaks limited in lish who is arrested after so many years and in unfamiliar environment who is trying to both figure out what happened to him contact his old lawyer try get his family to marshal the financial wherewithal to be able to retain a lawyer while five months to the court may seem like an excuse no a lengthy period of time it's not in the life of an alien such as mr pearl's who finds himself in this horrific situation after believing all this time that he was in the country legally he happy since two thousand and seven now since two thousand and six he didn't believe he was here legally no no i agree from that but what i'm saying is in those few months after he was arrested that was the only time he had to come to grips emotionally financially how to give the court a bright line test but i think that five pints while it may seem like a long period to the court simply is not such a long period to somebody like mr perez who pays motion to reopen i moved to reopen my case you're trying to deport me based on a nine hundred ninety deportation order that is invalid it was invalid because my lawyer never even told me about it he was plainly ineffective that i'm having trouble figuring out why the time and expense involved with something that i just stated that can be done in a page or a page and a half five months is inadequate to do something like that is this thirteen twenty sixty didn't well you're out of the obligation is on the attorney that's why a client especially an alien with limited inhalation and knowledge certainly of immigration rules hires an attorney to represent him is the attorney obligation when the when the i'm sorry my question is is there any evidence that the lawyer didn't notify the court there's no affirmative evidence that he didn't but the obligation was on the attorney to take whatever steps were reasonable and he failed to do that in this case frankly the pres case from the second circuit seems so so very very much on point even as to the name  that i am the fact that justice sotomayor participated in the opinion that i ask the court to consider that case although from a different circuit very seriously in this case thank you we underwent a stand your argument that the case was very well argued by both sides and will take the matter under advised