aliens awful being granted voluntary departure with respect to his positive at what he says they include his loving your residence his two united states citizen children a longtime united states citizen girlfriend the fact that almost his entire it's not very hard to just be a law abiding citizen he gets himself in trouble here by doing various things well he has he has most certainly got himself in trouble your honor as is evident by the record mr ramos has a drug problem or had a drug question had for assault convictions for convictions of violence one conviction for resisting arrest he also had some positive equities including the fact that living under states for fifteen years he had some united states citizen member family members including his sister aunts and nieces in our case mr ramos has more positive equities and less negative equity as not only does mr ramos have children here but he also  does have family here but he also has children here he also has someone who applied for him to get status additionally he had not been convicted of any crimes of violence whatsoever in terms of additional cases we also have and that case that individual had eleven convictions for legal entry two convictions involving violence he was involved in drunkenness threaten threaten people the wise again when we look at mr ramos his  conduct doesn't rise that level although he had been convicted of drug possession and he did have a firearm conviction most certainly he wasn't out in the community hurting people beating people threatening people committing  here's what it means i just says people like you don't get it that that's absolutely correct your honor in fact the immigration judge told him specifically that i don't believe that people who are in the united states without documentation should violate the criminal laws and the drug laws united states and then explain that he wasn't a voluntary departure so he mr mr ramos did not even have the opportunity to set forth his positive equities so as i understand the status of this case there's no argument from the united states that the first two elements of section thirteen thousand and sixty have been met and we've got a due process violation here what we're looking at is whether or not there's prejudice absolutely and then we look at the wrong standard he applied that standard of history not i'm sure in hardship standard that's correct right as opposed to the plausibilities absolutely on it but i believe that this court can raise the issue irrespective of of the decision made by the district court judge in addition to the two cases and i mentioned there are additional cases where individuals with worse criminal history and similar or worse positive equities have received voluntary  if i can ask you a question absolutely you are only hearing from my thinking on an issue raised by judge christensen on this prejudiced standard does the more likely than not that the i j would give that relief or is it does the i j a still have to tell me about the avenue for voluntary departure a plausible plausible remedy and they have struck we would argue well first we would argue that irrespective of whether it's plausible or probable the immigration judge as a matter of plausibilities right probability is is more than fifty percent it's more likely than not the issue is really whether or not it's plausible in this case due process this isn't an issue because the government hasn't hasn't raised that it's been waived  but to answer your question again to make sure that my answer is clear the immigration judge we would argue has an obligation under has an obligation to advise any alien mr ramos or otherwise that is eligible for voluntary departure even if it's not probable that the immigration judge would get it would give it i see i have two minutes left i'd like to reserve the rest of my time for rebuttal let's hear from the macdonald for the united states mr ramos lived in the united states for eleven years by my count about two years and ten months of those eleven years were spent in custody so he had about oh about eight and a half years or so eight years and ten months to establish that he was a candidate that would plausibly receive some sort of discretionary voluntary relief in those eight years and ten months he committed twelve crimes four of which were felony convictions eight of which were misdemeanors as your honor pointed out one of the felony convictions was a felon in possession conviction following a previous drug possession charge in that case the officers discovered a firearm with me now is your argument that his behavior materially worse from the behavior we see in news other cases where there are strong ties to the united states and volunteered harsher is granted that's going to stand the strength of the bad record i got out but there's some other cases out there that suggest that people would record just as bad or maybe worse get voluntary departure let me address the two cases that my colleague brought up gonzales figaro and then there's the penn neda case both of these would be a cases in that defendant had more positive equities and less negative equities and let me let me just review them as for the positive equities that defendant had resided in the united states for fifteen years his mother was a lawful permanent resident his sister and other family members members were citizens he had rigged rehabilitated the problem that led to his criminality by joining a group that was specifically found in valdez novoa he also had a that's correct and the critical distinction though your honor is that the longest prison sent that he served to consult figaro with six months we don't know the specifics of those assault convictions the record is not clear but we do know is that the longest prison sentence of the crime that led to the sentence well i think with mr ramos the importance is that it was his third drug conviction that finally got him to the sixteen month sentence he had done this twice previously and each successive  conviction also violated his terms of probation from previous convictions clearly got a drug problem that he has a pattern that we see with people who have drug problems that's correct and that is a that is a negative equity that has been specifically identified in the case of counsel yes or no i don't i don't really disagree with you about how negative that act will be and maybe some others are but let me cut to the chase now what's on my mind hardship or probability and so just in terms of normal first principles for an appellate court if the decision maker apply the wrong standard why judge did and we recognize the parallels between what the immigration judge did here and melendez castro where the immigration judge made it very well known that mr mcdonald i think i think judge gould was in fact referring to the to the standard question did he apply the correct standard in determining prejudice the district court judge i understand i believe that he did there was discussion of the shoes and i think that's where the which which involves writing hardship now this court has already said in r c hernandez that shews tare when used as merely instructive in applying the plausibility standard is fine in that it's permitted and that's what the district court did it said well you know let's look at the family the family ties to the united states and to determine whether that that factor sort of standing alone can can be sufficient to demonstrate plausibility if you look at the record on between one eleven and one thirteen or so the court references the possibility standard throughout there are there and there was no the court never stated that the standard i have to apply is is related to the extreme hardship standard the court makes it pretty clear to me that he objected we cannot make a showing of plausibility of voluntary return in this case i don't think that's plausible so the court the court referenced the district judge got tangled words you don't mean voluntary return departure yeah i think so i mean the record is clear that the district court knew what relief was being sought that he applied the plausibility standard that he looked at choose tare as merely a instructive in applying the possibility standard this court in r c hernandez specifically referenced the shoe story case and said that in this context that look at that and looking at it and viewing it as instructive is permitted in this circumstance the other case that my noce in that case it wasn't even an appeal by the government of the grant a voluntary departure it was an appeal from the denial of a continuance of to apply for adjustment status by the petitioner the b i a went out of its way in that case to say the following given the respondents criminal record a grant of voluntary departure by the immigration judge was more than generous the despite his more serious criminal record so those are the two cases that my colleague brought before the court that would demonstrate plausibility but in that pen naida has already been discussed by this court and has been shown to represent the outer bound i don't find that in this case the equities present great actual or prospective injury from a deportation rather than voluntary return or any kind of extreme impact beyond that would be a common result of deportation that looks to me like an extreme hardship standard to me two two responses they are the first is that as as mentioned the schuster case that was this comm after the court has looked at that and i'm trying to get into the mind of the of the lower court and try to figure out which standard that courters applying and just looking at the words of the judge it looks to me like he's applying an extreme hardship standard  supposed to apply as ability standard and if that's the case because this is denote an over review this court has the entirety of the record before it and can rightfully determine that based on ramos martinez's negative equities and positive equities that it was not plausible so you both of us want to make a decision are still the way the  review standard would require you not want to if you're going to lose well you know i think that based on the standard of review that's that's presently before the court that the court can look at the previous case law count so by evan my mind that has to know for review we can do everything ourselves but as a matter of practice you know i really want to undertake acknowledge that the court referenced extreme hardship the entirety of this record was based on the possibility standard if you go back i got a variation on this possibility stand and the judge clearly says i've got to decide whether it's plausible where the judge makes a mistake in my view is he does not state the proper standard for granting voluntary departure so if he's trying to determine whether it's plausible that this man would have gotten voluntary departure he then has to look  even without even without the criminal record he cannot object if we make a plausible showing a voluntary return in this case we know that if you have to apply both the positive or way both the positive and negative factors then and fact he should be decision and will take our normal