adequately present the position meanwhile the supreme court in the lower courts have consistently and repeatedly held that children are developmentally different from adults and that they need extra guidance when facing adversarial proceeding in miller says in alabama the supreme court held that due to weaknesses in understanding consequences and impulsivity that children should be treated differently from adults during the sentencing  can the court held that children required extra protections in order for their case to be transferred from juvenile court to criminal court and of course in galt the supreme court held that counsel is required to during civil juvenile who was an unrepresented miner received voluntary departure during his removal proceedings or had he received a sign he would not be subject to the felony of a legal r actually before us i mean he didn't press the asylum claim to the district court below right and he did not press the asylum claim and ordinarily we would consider that for credit correct he did there was  testimony regarding potential asylum in the district court and i think this court can look to the broader circumstances of the hearing now it is much clearer both from the recording itself and from the testimony that came before the district judge during the criminal proceedings that he would have qualified for voluntary departure and voluntary departure i but the way i read our case while voluntary departure isn't even a liberty interest for purposes of due process cause so how would you know if it's only voluntary departure why does the due process clause even enter the field if we've already held that discretionary decisions  don't trigger any type of liberty interest individual we are starting to different due process violations that occurred one of those is the absence of counsel and had counsel been present then counsel could have  liberty i think your honor the you don't have the liberty interest to counsel you have counsel to protect your liberty interest in something and i thought that something else was voluntary departure but if our cases hold that discretionary decisions like voluntary departure don't trigger any type of liberty interest then i would think that any right to counsel would be moot in this case up least well your honor i think the liberty interest that we're talking about when we're looking at the right to counsel is broader than just the specific liberty interest to do the specific question of voluntary departure and of course there is a circuit split on the question of whether or not discretionary relief  qualifies now in in the case in a straw and in ash what the court was talking about was whether or not an individual or at least an extra the court was looking at whether or not an individual had a right to be notified of discretionary relief and i think that is a separate due process question notification of rights to relief versus the wholehearted requirement of asking a child to adequately research and discover any and relief he might be eligible for and then to evaluate whether seeking voluntary departure versus some other form of relief is in his best interest and then to be able to adequately present that to a  intimidating inherently intimidating court body argument that you have a liberty interest in being formed of a right to voluntary departure in which you don't have a liberty  interest we started to to due process rights one of them is the question of whether or not he had a right to be informed of his right to seek voluntary departure that is we're raising the argument to preserve it given the circuit split on that particular question but it sounds like you agree that it's foreclosed by our president i think this court would have to wreak revaluate both really the estrada decision and i think that this court could do that given inconsistency as with the astronomy decision and the mendoza lopez supreme court case but this court's not required to do that in order for mr sylvester gregorio to receive relief in this case because of the separate due process violation is that he was required to  present his case without the assistance of counsel and why that's particularly concerning here is that prior removal proceeding is now an element of a later criminal charge and i think that's where the real question comes in is whether or not we can use a prior un counseled removal of a juvenile as a foundational element of a later criminal conviction and mendoza lopez the supreme court already highlighted it even subject to judicial review like a petition for review context the statute bars our jurisdiction from considering discretionary decisions like a voluntary departure  distinction factor is that in a one thousand three hundred and twenty six conviction in the mendoza lopez case was addressing the criminal consequences it was addressing whether or not a prior removal order could be a conclusive element of a later criminal removal particularly where he would have qualified and could have qualified for voluntary departure how do you receive voluntary departure that would not qualify him for a felony conviction under one thousand three hundred and twenty six dollars so in this case where he's only ha one prior removal proceeding that occurred when he was a juvenile and when he was on counsel and that should not under the mendoza lopez supreme court case be considered sufficient to qualify as a basis for felony can criminal conviction counsel i've kind of a technical question here that the removal hearing that we have in the record that we have the recording of was that a master calendar hearing or did it take place after the master calendar hearing what was that thing that we that we can listen to your honor that's a question i don't have a specific answer for at the moment doesn't matter so your position seems to be that he was eligible for pre conclusion relief if he had asked for it before the terminations of the master as i read the regs that before the termination of the master calendar hearing the government says will know he had to be able to prove ability to pay that would be true if it were not a master calendar hearing that's as i understood knowing what this thing was  of critical to the exhaustion question my understanding of the i see my time is out of my mia my understanding of the distinction between the pre conclusion voluntary departure and the post conclusion volunteered voluntary departure is whether or not an individual has already been ordered deported or removed and that once they've been ordered deported or removed then they still have an opportunity to seek voluntary departure and that the pre so at this hearing during the hearing he had not yet been ordered to remain ordered removed and therefore he still could have sought voluntary departure at any time during the hearing i see so you think it it impinges the triggering point is have you been ordered deported or that we think the district court made in this case which is that the just record thought that because children have the capacity to make certain important decisions concerning their removal cases like the right to waive a bond hearing and you know be flora's for example that they also have the ability to represent themselves in those cases and we think that indian of the edwards actually contradicts that very clearly because what indiana v edward said is that you may have when you're looking at competency to perform functions you have to look at the specific competency at issue and there's a very distinct difference between the competency to go forward with an attorney likes of basic competency to go to trial and the competency to self represent to represent yourself and complex proceedings before a judge and against a trained prosecutor  right of the state to refuse in fact in fact in the universe is edwards does not require the states to refuse to allow somebody with a severe mental illness to represent themselves it just gives them the option right to deny them of hereto right so i think you're spinning indiana vs edwards awfully hard maybe to cases so you're saying that that the district court or the immigration judge would be required even indiana that versus edwards doesn't go that far for parents gets pregnant well i would disagree your honor i think what indiana v edwards instruct is that there is a clear break between the two competencies required between the competency required to stand trial and that to self represent and it describes the latter competency is as more complex and requiring a greater degree of judgment and skill and understanding than the very basic ability to go forward with a lawyer and to have some which all that requires essential is like a sense of basic understanding of the proceedings view that analysis is equally applicable to children you know older children no one is disputing here may have the ability to understand what's going on on their case in a basic level and also if they had an attorney that attorney would be obligated to consult with the child to make sure that they understood the child's wishes and were able to effectuate them but that's very different from the competency required to go forward without an attorney and to litigate your own removal case in the kinds of complex for mobile proceedings that issue here is the high level question i mean it seems quite obvious to me that children have strong interests here that there's a risk of deprivation but when you got to the government's kind of analysis under matthew eldred there's only a century one paragraph and nothing about what the cost would be of having a council or in all these cases under your bright line rule i guess i'm a little uncomfortable establishing a nationwide rule that councils are required in all these cases without so every removal case involving a child already involves that initial government expenditure like a prosecutor appears at every removal hearing involving a child and you know there is no doubt that it would require money to fund programs for counsel there are also different potential remedial options for any court that would implement any kind of rule that this court establishes like for example just giving the child some additional time or making better requirements to give them additional time to find counsel but there is no doubt but i think all we're saying here is that the how did that work under your theory if you give them additional time to find counsel which they can't obtain for a variety of reasons how does that make your problem well i think what it would do is potentially alleviate that at minimum the cost problem because it gives the child a meaningful opportunity to at least try to secure representation on their own without needing to resort to government resources which is a choice that many people make in the criminal context too for example to pay for their own lawyers for their own reasons but it's true that if  what we are saying is that it would be unlawful to order a child process a child removed without at least providing them some representation i see my time d now defendant didn't attempt to prove the st to exhaustion and waiver but in any event here defendant failed to show that the removal hearing think that it's an open question whether this circuit has required  incorporated the holding of mendoza lopez into those three factors that case is different because the government there conceded a due process violation in other words it invited the court to find a due process violation violation so the court did not in mendoza lopez say that a waiver on its own was fundamentally unfair or that judge's failure to develop the record was fundamentally unfair insofar as it would be a fundamental defect in the proceedings so congress has best interpretation of that decision was one hundred and thirty two thousand and sixty and as this court has recognized a defendant does need to show all three now in this case it doesn't particularly matter because the district court was correct that defendant failed to show that his removal hearing was fundamentally unfair in other words he defendant failed to identify a defect that would undermine the integrity of the proceedings george washington question about the audio recording that is in my view that is an audio recording of the actual removal hearing so it's not a master calendar hearing it's nothing before the hearing so at that point in the hearing at the removal hearing definit was no longer eligible for pre conclusion voluntary departure at least that's that's my reading of the regulations a and if that's true then the then the i j was right when he said you have to have the ability to pay that's correct if it is depart on their own i think that's the language a means to the park so the judges i get that i understand that i read that one thought oh well that makes sense except the b i a seems to have said otherwise they seem to say it's reversible error for an immigration judge to require in a pre can cushion hearing that you have you demonstrate the ability to pay so i mean well if we would have read the statute differently that question doesn't even seem to be before us is what the that's what the be a theme say it is i agree with you that the regulations in the statute are entirely consistent on the pretty conclusive involuntary departure point however even if the judge to whether he had exhausted so well as had exhausted you could expect him not to appeal if he had been affirmatively misinformed by the judge that there was an element that wasn't actually required right  ok i see what you're saying on the exhaustion point but in terms of the stock medic that's right so in terms of the fundamental fairness point even the eligibility for discretionary relief the judge is not required to inform a non citizen and remove in remov obviously does not apply in removal hearings the th amendment does and it guarantees a non citizen and in removal hearing of a fair proceeding which defendant had in this case it does not entitle or guarantee the right to counsel  it may in certain situations it took to make the proceedings fair but that's not the case here defendant was fully informed of all of his rights the judge read the notice of appear to the defendant and explained the explain all of the charges using common everyday language the judge also explained the defendant's right to appeal also using common everyday language not just not just technical language  it seems clear from the recording and also from the some of the testimony the evidence you're hearing that the interpretation was a good one that defendant understood his rights at that hearing was able to make decisions on his own so this is not the type of case that would rise to a level where an attorney would have been necessary to give the right only to the opportunity to follow the proper procedures and to make his case before the immigration authorities what he chooses to do with that is his own business and his proceeding is fundamentally fair if the government gives him that opportunity what do you make of the distinction between that case and this on the fact that the child can reestablish a different rule no your honor because i think that that case speaks to fundamental the concept of fundamental unfairness with with any  clause well i don't think it has to be a generic determination i think that the th amendment allows judges and in particular immigration judges in this case to look at the juvenile on a case by case basis so obviously it would be different for a sixteen year old in this case from a two or three year old a five or six year old and so that's what the th amendment allows that's what due process allows as the supreme court's has said due process is a flexible standard so that allows judges the flexibility to make a case by case determination and that's just another reason why a bright line rule is not appropriate in this context because judges do have that do have that flexibility just like the court and in reno versus floors in  three similar to this court's holding you know sake is a bit due process is satisfied by giving the detained alien juveniles the right to a hearing before an immigration judge that is what the that is what the non citizen defendant here had a hearing before a judge the judge seemingly on the audio was patient with the defendant read the rights explained the explain the right to appeal and attempted to fully develop the record asked the defendant open ended questions in an attempt to see whether he would qualify for voluntary departure the judge found that because defendant did not have the ability to contact his parents and pay to depart on his own that he that he was not eligible for parole voluntary due process claim of the th amendment because the court talked about the distinction in the prejudiced standard and it said that it was going to adopt a reasonable probability standard so reasonable probability that but for the alleged  the outcome of the proceeding would have been different that standard is more lenient than an actual prejudice standard however in the immigration context it's unclear whether a defendant in a one thousand three hundred and twenty six dollars proceeding would actually  show that but for the air he or she would have been able to remain in the country so because other cases that have looked at discretionary relief in terms of cancellation of removal and suspension of deportation have held that for there to be a fundamental defect the defendant would have had to show they would have been able to remain in the united states here irrespective of the diff decision on voluntary removal def was going to be removed from the united states it's also an open question whether someone who was removed from the united states even voluntarily can then be prosecuted for illegal reentry i haven't seen any cases that have decided alternate order of removal is also entered i haven't done a lot of research into that i haven't seen other courts address that but i think that is an open question that someone who's voluntary departs and then comes back to the united states i don't know whether that alternate order of removal is reinstated and that would allow for an illegal reentry prosecution but i think it just goes further to the fact that a denial of voluntary departure in no way can be  a liberty interest question he doesn't have a liberty interest in that in the st place correct correct no liberty or no project that's right or on that's right i think even making an argument for a liberty interest in voluntary departure is weaker than a liberty interest in cancellation of removal or another discretionary form of relief that would actually allow the non citizen to remain in the united states where a denial of the relief or a granting of the relief would allow the non citizen to remain in the united states for obvious reasons the liberty interest would be greater in that situation the court has no further questions i'll conclude thank you very much i'm going to start by just addressing the court's question with regard to the cost to the government and because this case is a one thousand three hundred and twenty six case this court can narrowly tailor its opinion to the specific context of later felony convictions based on a prior removal order which would be a limited it wouldn't necessarily require the government to pay for appointed counsel in every case it would just be a holding that when a child is deported or removed without counsel that hearing cannot be the basis of a later felony conviction i also wanted to address this prejudice question again and the case of montanus gonzalez versus holder which i believe is a case out of the th circuit does draw a distinction between a liberty interest based on receiving discretionary relief as a separate liberty interest from the right to a fair hearing so the appointment of counsel or the presence of counsel is required in order for a child to adequately identify any defenses and present that the court's through if the result of the proceeding would not have been different if there's under let's use the strickland standard if there was not a reasonable probability that the result of the proceeding would not have been different there's still no prejudice if he had been appointed counsel there's a reasonable probability that counsel would have asserted his request for voluntary departure at the appropriate time the fact that mr  have asserted it at a proper time is separate because had counsel been appointed we can there's a reasonable probability that counsel would have known what to do and how to seek that proper rel the government chose not to provide counsel to mr sylvester gregorio at his removal hearing instead suggesting that a miner who does not speak read or write english is not familiar with the american law and has only ever received one year of education should somehow discover his eligibility for different forms of relief understand how the different forms of relief interact but you're not making it as clyde claim per council your claim for council is basically right proceedings at all times however the court doesn't have to reach that conclusion in order to rule in favor of mr sylvester gregorio here st of all the facts of this case indicate that he did not understand his rights and suggest that counsel would have reasonably rely really related to a reasonably would have caused a different result in this case and because this hearing is being used as an element for later criminal conviction the liberty interest at stake in this particular case are higher than they would be in a normal removal proceeding