is asking that his prior removal order be vacated and that he have the opportunity to be returned to the united states full for a full and fair hearing including an evidentiary hearing in this case this court should review first of all mr guzman's underline removal order because he suffered a gross miscarriage of justice in that underline removal order first mr goodman was the victim of a race based stopped in montana respect before we get to that the under trial for you to be why a petition for review has to be filed no later than thirty days from the date of a final order of removal that didn't happen here obviously why isn't that a jurisdictional issue for us i understand from garcia ring cone that that that that this issue was discussed in that case and they decided that  one exception to that to that jurisdictional issue based on constitutional and legal grounds is that when there has been a gross miscarriage of justice this court has the opportunity to review the underlying remov order and i think that exception has been so narrowly defined that i i do not know of any case where a gross miscarriage of justice has been found by this court and i think you don't know one or that has been right not that i know of no given that fact and given the fact that what you allege happened occurred soul long ago how do we then bridge that time gap we're talking years and years and years and years i understand and i think this this case is a good example of how these violations can happen and how when an immigrant is on represented for years that these type of violations can be unrecognized and underdressed for years and it was only when he finally had counsel years later that he was able to understand fully that his fourth amendment rights were violated that he should have had more process in his in his underlying hearing that an immigration judge should have asked him whether he intelligently waived his right to a hearing and whether he fully understood his rights as well as that he fully understood that he waived his right to counsel immigration judge never did that in this hearing in his underlying hearing when nobody did that in those days right when that was what the law required in those days right well the regulation actually very clearly says but in this type of in this type of case a stipulated order that is regulation eight c f r one thousand three point two five that when there is a stipulated request for order if an alien is on represented the immigration must determine that the aliens waiver is voluntary knowing and intelligent that over the radio he was illegally in the country wouldn't have been no i do not because what would happen at the hearing and how would that have changed the outcome well he probably would have had a chance to apply for a bond so he would have been under taint and then he would have had the chance to marry his u s citizen partner he already had to but that's very speculative all of that in terms of it legal consequences if you had a hearing he would have been removed well he could have he could have received voluntary departure and with long terry departure he would have had the opportunity to come back to it with the paperwork what you're talking about to verify that he had the on his rights that he had not violated any of his rights well i think the  regulation says immigration must determine that the aliens waivers voluntary knowing and intelligent stipulated decision order in this case says it's says  i would i i don't think it can based on this regulation and i think it would violate due process and then so let's talk about paula terry departure and my question what would difference were voluntary departure guzman's case because it looks like we don't know and the truth is not a lot of case law for us on what a miscarriage of justice is and the press and a lot of it hinges on the prejudice and so you're saying he could have sought voluntary departure it looks like he did say that he was it's like to see voluntary departure is that sufficient i think it is i think  the difference between leaving the united states with the removal order and leaving with voluntary military departure when you time we depart is a very different affair if someone is removed they have a removal order they're banned from reentering the united states for ten years without a waiver whereas with voluntary departure he only had to deal with with having a way of providing a waiver for unlawful presence which he easily could have received in the in the consulate in juarez and he but he came back within four months what do we do with that how do we know that he would have only waited a year i mean we're in a kind of a challenging situation at this point i understand so is there any  authority or just even your best best argument on what we do with that well i think really i don't know why he i can only speculate why he came back within four months and that was because his wife was pregnant with their third child and he was very worried about her but i think if he had had the benefit of counsel which he didn't he would have you know he would have been able to know what he should do how he should proceed with his case from from that point forward did he try i'm sorry did he try to obtain any form of immigration relief or visa prior to two thousand and thirteen when he was again in removal proceedings so his  his wife filed and i went through the petition for him but unfortunately he was not able to use that petition even that was approved because he was subject to the permanent bar and when that point when did she do that i it is not in record but i do believe it was years prior to when he prior order was reinstated let's assume for a moment that he had gotten the relief that you now say he should have gotten which was voluntary departure where the immigration judge would have let given him the opportunity to leave on his own and not have to remove a lawyer and that's the prejudice your guess yes now what about the the position of the government for remain on the asylum officers  determination what's your position on that my position is and we actually went to mediation on this was that i was fine with the case been remanded but i was not fine with the case been remanded with without my client present for a hearing there is just what it is remained to have the immigration judge just state the reasons your client wouldn't have to be present for that well i think i think he should have the opportunity to be present i don't i don't know how that hearing or him reading his decision but isn't that an intermediate step in other ways you could be remanded to obtain the clarification on the immigration judge reasoning and now at that point if there's a need for a hearing then that's a subsequent step but the intermediate step could be conducted without him being there could not i'd i mean i don't see how that would be ok i just you know i can only say that the proper course would be for my client to be president so how would that work well the united states government could parole mr guzman back into the united states for a hearing and  asked whether they could do that during mediation and they said that they could not so i've reached my my time ok i have a couple questions i just before if sorry ok coach on your time you mentioned that you know he would that's the relief he could have gotten  with respect to the voluntary departure order but how certain are we do we need to be that he would have gotten that relief i'm fairly certain it's a it's a pretty straightforward statutory application  timeliness at the time and us of challenging the underlying right well my my best argument i understand the jurisdictional arguments that the government has made and i think that it's the precedent of the circuit that there is th small this very narrow exception for being able to review the order when there's a gross miscarriage of justice and that on the two thousand and thirteen removal order are you arguing on behalf of mr guzman that he was not aware he was in in two thousand and thirteen or just that he did not choose to sign the relevant paperwork and stated he was subject to reinstate the proceedings i'm are you mean that he should've had an opportunity to respond within that time period that they decided to reinstate his prior order i think morale is you scared oh i basically said  that there could be a time when due process could require you know more scrutiny of these regulations when the outcome would have been different so i think if you've had time to consult with an attorney in that period say this is what happened with my underline removal order then i like to think that i sort of would have exercise their discretion differently than they did in the last question here should you have raised any challenge to that two thousand and seven removal order during his two thousand and thirteen reinstatement percy's when he had a chance to make a statement on the reinstatement apparently he chose not to yes so he did he did appeal so he did challenge the underline removal order directly to the immigration judge and the unfortunately those appeals were not sustained but that was a different circuit you know where you're bound different body of law here and so i i hope that the outcome will be different for this case you want to say about your time right ok thank you we'll hear from the government morning the morning hours may please the court victory warrants on behalf of the turning general what this petitioners trying to do is to take the immigration judges negative reasonable fear determination and use that as a jurisdictional springboard to go back six years ago and undo a two thousand and seven stipulated order of removal the court shouldn't countenance that as it is untimely under twelve fifty two b one you can jurisdiction dicta but it's on page four ninety seven of the decision i refer the court pacifically to that but the wealth of the case law from around the circuits indicates that a petition for review has to be filed within thirty days and this type of collateral tack is not permitted in those other circuits we pointed recently to the fourth circuit case and here and also the night circuit case  case law we have resolved cases in which petitioners challenge their underlying removal order by assuming their allegations are true and we do not make a factual determination that's what it looks like in our case law are we required to take mr guzman's allegations as true in his declaration is there any path for re man for an evidentiary hearing or determination because are significant due process violations i think what you may be referring to is in the typical motion to reopen process the court and board are supposed to consider everything that's provided in those motions to reopen as being truthful and going on that notion but here in this type of collateral attack i'm not sure that there's any press of a requirement that they that his declaration be double check to see if it was sure that that type of case but let's assume that we do for the sake of determining if there was a gross miscarriage of justice that his declarations are true really clear where they're arguing that there was such a due process violation with respect to his arrest that that should somehow do his undo his removal order and with respect to the due process concern regarding  voluntary departure we would respectfully point the court to the tovar lyndon opinion by two of our linda versus ashcroft of the circuit in which this court said that there is no constitutionally protected interest in  purely discretionary relief a voluntary departure so therefore if there is no protected liberty interest in in this type of relief how could there be a due process violation let alone a gross miscarriage of justice probably the government's order occurred in salt lake city they did as stipulated removal of water not the immigration judge but the da just had him sign a stipulated removal under there's no indication in the order itself that it was anything but voluntary actually signed that one as opposed to reinstatement order which he did not sign so you look at the law at the time of the removal order in two thousand and seven and a lot that time was just the regulation eight c f r one zero zero three point two five b and that indicated that the waiver had to be knowing and intelligent but there's nothing in that regulation that requires that the immigration judge actually interview they only intend to determine that in fact it is knowing that intelligen regulation but that that indicates first of all you're looking at the tenth circuit law really at this point is this developed in the tenth circuit immigration court was in the tenth circuit at that time in two thousand and seven there were no case law decisions that indicated that the immigration judge had to interview the alien to determine that his waiver was knowing and intelligent that case law only developed in this circuit in the cases of rama u s versus ramos in u s versus go after the two thousand and seven removal order was entered those cases are from two thousand and two thousand and nine so when you look and the gomez decision also stands for the proposition that you look to the law at the time that the rule warder was entered to see with the whether there were any due process violations and if you look at the law in two thousand and seven as it was in the tenth circuit there were no there was no case long term bring the regulations or statute it was only the regulation itself so  you think now though he would have been entitle in the ninth circuit to hearing before that i had is heard after two thousand and nine after the ramos case in this circuit this court may may have had an issue with the stipulated order of removal but that's completely not the facts here and so do you agree he was eligible for voluntary departure well l eligible and being granted the relief is two different thing feel we need to just find the ball really for him i'm prejudiced so i mean i know of no reason why he would not have been eligible for voluntary departure at that time and whatever again it is a purely discretionary gra relief and cannot not only cannot form the basis of a due process violation but we're talking about a gross miscarriage of justice which this court has never found i know it's quite a leap we don't have i mean everything we have is in memorandum dispositions that any where on this particular issue shed any light on it in those memos and memorandum dispositions are the ones that say we're going to just take as true what the petitioner is saying to dirk german gross miscarriage of justice here if we take what he says as true there are some pretty significant due process violations i'm just trying to figure out what's the standard of relief i mean is it possible is it anything harsher the find prejudice in this case well what i want to remind the court of is specter mention that towards the end of the argument she filed a motion to reopen on this stipulated removal order and made all those same arguments before the board before first before the immigration judge and then before the board about there being a due process violation the gross miscarriage of justice the immigration judged denied her motion to reopen she appealed that to the board the board dismissed the peel those cases those decisions are not in the record because they were not part of the administrative record that determine this case but they are relevant for purposes of your analysis to show that she got all the press this got all the process that was due and could have filed the p f are on the on the boards dismissal of the motion to reopen but chose not to do that for some unknown reason and instead is trying to use this case and miss specter even admitted that she was kind of she didn't use a form jurisdiction shopping but she said she might thought she might get a fair shot in this court than in the tenth circuit think i think the standard that you need to look toward is the idea that voluntary departure is discretionary relief and i was you know liberty interest i understand that so when he someone not even him is trying to establish a miscarriage justice what kind of prejudice what i what kind of relief is a plausible what i'm just trying to i just want to know what i'm dealing with and what i heard the department's view is over the department the department's view is that when you're looking at whether something is a gross miscarriage of justice as compared to a due process violation that we would suggest a gross miscarriage of justice is several love several levels meyer's prejudice and i'm just trying to figure out sir turman prejudice is it plausible really is it actually really has to be you know established i mean just what's the department's view on that you know in or in order to provide the department's view i'd really have to take that back to the department what's your view on it my personal view i mean your view based on the your experience in the authority that you might not know i just trying to figure out what's the standard that you think is necessary regarding showing prejudice  miscarriage of justice i think you have to show actual prejudice and and i don't and your best friend and that's fine that's exactly what i was looking for what's your basis for that so again this we would like would like the opportunity to brief this to get the full department's view my basis for if you're asking me based on my experience of doing immigration law for and i have no one else here did i so i guess i get it i would i would say that based on my knowledge of what constitutes a due process violation you have to show actual prejudice that you actually that wouldn't be possible if you had a discretionary decision correct your honor and then that's why i believe the court discordant tovar linden in two thousand so i guess what's it like your view on because i mean what he alleges here is really an interesting scenario and if if if he was mr essentially co d into waiving his rights to see and i j in women's rights to see an i j and challenge his case in two thousand and seven when should he have first raised his claims of due process for fourth amendment violations in two thousand and seven point in time i just want to make sure i understand well he could have raised that the point when he was being offered to simulate order of removal he could have raised it within thirty days afterwards he did waive appeal through that stipulated or move at least it would have been a timely appeal if he had done so thirty days before but also your honor again in his motion to reopen and we covered this by the way in our brief footnote five and also footnote seven in our brief the fact that they did file a motion to reopen and had this process to determine whether or not there was a due process file violation in their original order and that went through two levels of review the immigration judge and the board  for some reason they didn't do a petition for review further not unlike the follow up on that aspect if you don't mind if i understand correctly you're saying that the very issues that we now are presented by the petitioner have been brought before and i think it shows that they appropriate amount of process has been given and you can there's a case that we say in our brief that you can't just continually raise the same due process violation in different different for so that's that's need for the person to be there in that interim step of having the immigration judge write his decision we fully agree there has been no challenge whatsoever to the hearing that he got before the immigration judge at that time where his counsel was able to make all the arguments that he wanted to and that's at page twelve in fifteen of the record where his counsel indicated that he had a fear of going back as a result of this particular social group that he thought he belonged to so there was way that that that social group doesn't fly doesn't it doesn't fly but but but a case of clear about that very clear ok i never nevertheless that's what he raised at the time and the issue here though is that he raised before and i know i'm a little over but i appreciate finishing this point before the asylum officer he indicated that he was also had a fear on the basis of religion and the immigration judge did not address that is decision at that time we said in the interest of justice we think it should be remanded for did immigration judge to have a more fulsome decision to explain his reasoning now and we think that that might be the proper result but what i want to point out also is maybe there is not a there was in the need to do that because when his counsel brought this claim be before the immigration judge he didn't say anything about the religion claim he only pursued the particular social group claim so maybe that's why the immigration judge didn't address it his counsel filed a brief which is also in the record and that brief only raises a particular social group claim so when the immigration judge said  concur and i want to be clear that there were you know first first he indicated that he didn't think there was any basis for there to be relief on the basis of race religion et so he did address that in the first sentence of his order but then he said he concurred with the solemn officer and the asylum officers report dealt only with the issue of particular social group so the fact that the immigration judge left out of the because he considered other matter waived now but as we said we agree that it would have been better if he had put that in the decision itself so but either way whether the court remands for that decision or denies a petition for review outright this court has never found a gross miscarriage of justice and has found on numerous occasions scores hundreds of occasions that there have been due process violations i think a gross miscarriage of justice has has to be an never found a gross miscarriage of justice so when we're talking about this stipulate removal water you know we have this allegation that he didn't understand what he was signing that that in the government's view does  rebuttal first of all i would just like to point out that contrary to what the government has said this court has found that when the petitioner was not mean meaning probably advised of his right to seek voluntary departure that there was a due process by elation and that was the melendez castro case and so i think that there is a strong argument but that mr goodman was prejudiced as a result of not meaningfully being advised of his right to seek voluntary departure let me ask you about the hearing that you had before the i j a in the b i you heard me ask the government what role that should play in our decision it's my understanding it's least the government's position that the very arguments that you have made to us you made to them and that you did not appeal to b i e s decision is that race judicata i don't believe it is race judicata first i want to make a point about form shopping and i think the forum shopping that happened in this case was when mr guzman was taken to utah salt lake city out of the ninth circuit for his immigration judge decision he was detained in ere you get all of the things that you're arguing before us the i j and the b i heard you ruled against you you didn't appeal why isn't that the end of the story well those cases aren't a part of this record those decisions are not  properly applied to the two thousand and seven proceedings are calling it in salt lake city that's in the tenth circuit right isn't that the law we would apply well i i think you're not saying that we take the law of another jurisdiction and apply it to that because it's more favorable to your client's position well i think that i think that most of the due process violations happen within the circuit and so i don't really know what circuit within the once are it and so i don't think it's unreasonable to argue that we should use the law of the circuit where mr goodman was detained for over a year  resolve this case you know other questions by my colleagues all right thank thank you both for your argument in this challenging case the case just argued is submitted