part of the government's case in the removal proceeding and that conviction is subsequently vacated on substantive grounds the alien is titled to a new removal hearing can you help me out by just walking through it conviction the cultivation conviction that was vacated and substantive grounds that's the only thing that prevented this person from being eligible for it three different forms of relief cancellation of removal vasari departure and most importantly adjustment this is an individual who really doesn't quite exactly answer my question yes i mean my question may be off the wall and i'm just trying to get it i find this all a little confusing ok ok so there were two grounds for his from true his removal one of them was the conviction correct and one of them was that he was unlawfully present in the united states correct yes so clear really the ground for conviction leadership problem correct but if there's another independent ground that doesn't have anything to do with conviction then that wouldn't appear to make any difference who on that point you're on i would really strongly disagree because the bottom line here is that adjustment of status which is a very straightforward process this is a man who is married to united states citizen the couple they have two united states this children the bona fides of the marriage have never been questioned in fact the immigration service has approved the  thirty that mr card as his wife has fallen here so but for the conviction he would have been able to go forward with a very straightforward adjustment of status applications and in all probability he would have been granted that he would not only would he not have been deported in all probability he meaningless by the i j a it was the fact that even convicted precisely and not for the conviction he would have is that but for the conviction that was subsequently vacated on the merits this man would have been eligible for not one but three different forms of relief and one of those forms of relief is adjustment of status which is a very in both of those cases at the time of the individuals removal from the united states the conviction was still on the books it was vacated subsequent to the individuals removal and that's why we think those cases control the situation is identical the important point is that the conviction cases he had the right to make a motion to reopen and he was entitled to a new removal hearing someone may say we we have a rule that if the conviction was vacated on humanitarian grounds or to help of the immigration proceedings it doesn't affect it doesn't have the leaders are right the fact we agree with that ok so how do we know that that's not what happened here well i think you need to look at the motion that was filed right as well as the declaration from his criminal counsel mr truly because some of what happened in the criminal process when you look at that the transcript obviously some of it was conducted in chambers and off the record but the motion that was filed makes clear that it were taken only after he entered his plea so there were two legal substantive legal basis for the invalidation of the plea for them the most and also talks about the dress the consequences but i guess the one area where the court makes reference to the reason or what he's doing is i guess on the at the dover fifteenth two thousand and three hearing right at the beginning he says they have made a motion in this case the court will accept that exactly that's  and so what you're saying is we have to look at what your motion is precisely as based upon we will grounds and mr to be declaration as to what you know happened in chambers but yeah i agree that the motion that was filed does talk about the the asking you know i guess it wouldn't be more appropriate if you're right on all of your arguments as to as to whether or not that relief that was granted in the state court was granted to resolve that well i think it has been resolved because the government can't point to any state any provision under call like a volley you know a lot of stuff if i knew what went on in chambers and we know that something went on in occasionally well if he doesn't have that legal authority you have to assume that he's the trial judge is complying with one don't know but ok i would beg to differ with you on that but right even assuming that you're correct on that ok i think the resolution of that issue would still had an interview but the problem here is that because he was removed unlawfully in our view he still subject to two separate bars on returning to the united states so in order for him to get a visa he's going to have to overcome two separate tenure bars on returning  one under section two twelve a nine and another under section two of a ninety and there's no guarantee that he's ever going to qualify for those waivers so if the court doesn't act there's the strong possibility that he's going to be separated from his wife and children for the for ten years something else right and that was all worked out for all i know it was part of the same trade off for getting the first win set aside now if the first round was the legal it should have been set aside your respective of whether or not he's going to make a deal to plead to that there was a great problem with that below and those are the no circumstances where the court has set aside astronomers allas mendez for the primary cases petition cites in both those cases there was no counsel provided below that's not the record we have characterization a brief and i'll just cite some pages they are one twenty one sixteen one twenty five one twenty one twenty nine one seventy five all talk about the immigration consequences first stop so that's number one number two with respect to  well had i had i known i didn't even have a fighting chance i would have done this this would be my fighting chance but i figured i'd fight that another day and if he had no chance that's that's a significant factor he was advised in accordance with traditional  because he will have been eligible for the first offender exception your honor in the line but he didn't get there before he was speaking before lou's removed and this court's held in chavez that if you don't get it basis of any action by any any administrative body you want i think to disagree with that ok he was put on notice and the notice to appear that he was convicted that he was either convicted or admitted to ody wasn't convicted until after he was removed you know the point is this court sitting here today was he convicted of the controlled substance offense yes and the story end of story no jurisdiction