extended to three hundred sixty five days probation had he could have offered to serve four years and three hundred and whatever that is you know three hundred fifty four days and he still would be eligible today so at least you should let us from and on the question of whether or not he would have attained that to trial whether or not there's a retroactive effect on that the decision that has to wait and then apply for naturalization is sufficient to create a record after the fact because the person would not have done those things if they had known that the immigration consequences would that claim and serratia this court rejected that plan but they haven't with respect to the decision whether to go to to plead or go to trial you know instead of the rationale in those cases your honor has been that when you choose to go to trial you put your immigration status the court now was he would have liked to have gotten a better deal but there's an old property was offered a better deal well that's true honor but it's also about whether you would pursue it but i mean when you're when you're in in criminal court when you're looking with a different and options are if somebody tells you oh in addition to your sentence by the way you're going to dash forever from this country and you're never going to be able to see your kids again and you're just gone forever and you might work a little bit harder to pursue a plea agreement one of the downsides of committing assault is a deliberate when he went to trial so he's fundamentally different in that sense from the position on arm and our model at all of the trial cases all the cases which say look if you go to trial and you roll the die and so you put your immigration side of the red in every single one of those cases if the the old five zero five docket number and the proffer is nothing more than he had offered to plea and he will testify that he had offered to sleep this simple assault but the district attorney would not accept that plea instead of trying to flee to a higher fence in hopes of getting a lower sentence he did in fact choose to go forward at trial in the hopes that he could prove his innocence but also with the knowledge that under the law at the time in early one thousand nine hundred he would have qualified for eight to twelve for status and if he was really relying on to twelve to you would have been a not travel abroad b wait at least until he's affirmatively a regular life that status waive the grounds of exclude ability and then travel abroad but he didn't do so any any alien chose to go to trial in fact going to trial that's the that's the default position you choose to plead guilty or you might choose to reject a plea offer but you don't choose to go to trial you if you're charged you're going to go to time that all of these cases will be decided in these statutes we're going to live in an act that i have done all sorts of different things i don't think that that's not quite what that's not that there's no relation to the supreme court concerns and pain a few things your honor first the post trial conduct claim is completely distinct from the claim about whether or not he relied at the time he chose to go to trial or didn't and that this court has accepted such a claim and hernandez anderson that that proves the strength of our claim he didn't apply for it because he didn't need it he didn't need it he wasn't supportable at that time he had no reason to apply for to twelve feet he could have done it if he had known of the immigration consequences he could've done and any of those points prior to judge found unusual unusual reasons to give a lower sentence you're a kind of defense and we agree with you on and three and sixty five days felony probation if you would ask the judge at that time ok no but we also want to deport this person on that