and one removal order was legally invalid for two reasons first the two thousand and one removal proceeding was constitutionally defective and second because mr pitino vacated the conviction that served as a so basis for his removal in two thousand and one this year before this court is of utmost importance currently around eighty four percent of detained immigrants proceed in pro se as did in two thousand and one the deportation proceedings must comport with the fifth amendment and be fundamentally fair principally for the fact that people are taken is safeguarded because as the supreme court is recognized deportation can take away all that makes life worth living for immigrants when we go backwards in this case to two thousand and one the proceedings were fundamentally fair at the time conducted were they not no your honor they were not fine not there are three principal reasons why those proceedings were not fundamentally fair the first one is because this court has recognized the an immigration judge has an obligation to inform a respondent of any eligibility for relief from removal in two thousand and one the sole basis for mr but tino's remove ability was a conviction for possession of methamphetamines that renders an individual removable from the united states but nonetheless eligible for a pardon from deportation called cancellation removal of which mr aquino met the three basic eligibility requirements for that relief while the judge did recognize that he was eligible he met the first two prong of the third prong the judge had a concern with and found him to be to me with that about them said i mean is deportable but not an aggravated felony in two thousand and two so when did you when did your view go back to b i and say i was not told of my eligibility for cancellation in two thousand and one when was that raised that was raised the third motion to reopen your honor the first two motions to reopen were brought by former counsel and both of those neither one of those was right and that's what i want to get to what i think is the meat of this case and let's assume the first t you are entitled equitable tolling for the time that the first council was effective but that didn't occur until two thousand and seven so fill in the gap for me between two thousand and one and two thousand and seven why do you get you have to s diligently in that period that's the correct yes except for first of all to answer your honest question equable tolling would apply in this case because of the immigration judges failure to obtain to appropriate waivers a waiver of his right to counsel a waiver of appellate right moreover he fails to inform of the eligibility for relief what case t s i for for that giving rise to equitable towing as opposed to providing a problem with a first though it's now might have been a good grounds for appeal but what what who normally we would think that what you do with an error by the immigration judge is you appealing to the b i a can is there any case that we have that says you get equitable tolling because the judge made a mistake there is up because we have a soak up which which talked about an immigration agent and because we're dealing with a non article three court i would say that an immigration judge does have some of the equivalent of acting as an agent for the executive branch and what the court looked at and so cop was not necessarily the rationale  that the second didn't the second did not can i take you backward some he said to be getting so make sure i understand it are you saying that the i j s advice at the first hearing that your client was not eligible for cancellation of removal was wrong correct it was wrong because transportation of a controlled substance this court four months prior six months prior rivera sanchez sitting imbolc had found an eleven three sixty a statue with identical language two eleven three seventy nine was a divisible statute not an aggravated felony moreover the only there's no evidence of a conviction in the record but that aside for second now when do you first raise that argument in your motions to reopen is the third motion to reopen the third we brought the third emotional in right and we we argue that the first two don't count they're not we're not we're not numerically barred because the first two motions were brought in affectively but you'd be time barred you'd be time barred in the absence of equitable even on the first even on the first one you would be legally invalid so we would argue this i'm just trying to get you to going to finish your thought so because it's because that removal order from two thousand and one is invalid because of predicated on a vacated conviction then there is no there  starting of the ninety days we have to invalidate so little or the can you can you can can you please answer the question i asked a minute ago about diligence between two thousand and one and two thousand and seven but i think your honor we would argue to upon the discovery unclear from the colloquy with the judge when we waited but but but but then he but then he figured it out because he had notice he was deported and so my question is from that point until two thousand and seven you quite need to so diligent can you can you help me out with right what can he do to say diligent and what i'm trying to get out of is that when the judge advised him of his appellate right he he had understood it was clear from the record that he could have possibly appeal in mexico so it wasn't clear to him the call if you look back at the waiver of the appellate right he says well i don't want to appeal here in the united states the council so here's the question just fast forward a little bit because you're talking about what happened in the courtroom and then he was removed right right ok after he was removed at that point the consequences were real clear and so what did he thousand and eight when he started talking to lawyers he was very diligent trying to figure out whether or not he exercised whatever is required by the law between two thousand wanted two thousand and seven he did not is your answer did nothing because that's what i what i'm surmising from what you're saying understand your argument that he may not need to do anything because you attacked the initial proceedings but just put that aside for a second we just need to know if there's anything in this record to suggest to the exercise due diligence between two thousand and one and two thousand and seven there isn't because he didn't see the due diligence is when he had to reasonably suspect that something that can console you but that's a legal argument asking if as a matter of fact there's nothing in this wreck would show that he did anything between two thousand and one in two thousand and seven to try we don't know when i don't know whether we just came back and we also know that he didn't engage a lawyer at that time if you believe what some time after his two thousand and one removal well he did sure we wanted two thousand two thousand and seven when he was untimely because he didn't do anything in the intervening years let me tell you what troubles me about your position when taken to its extreme and that's not this case but tell me what how we don't get down the slippery slope let's assume that he had counsel at the time of of the initial action and appeal to be i turned him down because his conviction was stoic stand and then he went into state post conviction proceedings it took him six years to set it that's my question if you are if you're proceeding through whether it's state or federal post conviction remedies to set aside your conviction and in your view you've established due diligence even though you haven't filed a motion within the ninety eight time period to reopen i think you could make that argument and i think the board granted some of those what i'm concerned about is this notion of filing a protective motion for reopening right after while you're pursuing your other proceedings that's not this case but it seems to me if we the import of this case if we say that you have to have filed your motion free up within ninety days even though you don't know the facts yet then people are going to be filing these protective motions to reopen and that's why i asked the question i get what you're saying your honor and i don't think that's what the board has done here or in any other case that i'm aware of they're not requiring that likely that sort of protective motion that petitioners that i know of do get post conviction relief and then they come to the board and say i disagree the in two thousand and one the proceeding was procedurally and substantively correct plies to the petitioner choice not to engage counsel the immigration judge asked him several times actually given one continuance to find one and then offered another one and the p time i think x l of aggravated felony was developed considerably since that but at the time the immigration judge with that conviction she confronted him with the one conviction for the possession of meth and the other conviction for the transportation he could reasonably have concluded no you're not going to be eligible for yes but couldn't he have said if you had said you're potentially eligible would that have been a correct statement in two thousand and one i don't think we know why don't we know that is a wobbler at the time well i was there at the time but the conviction document read discount methamphetamine and he pleaded guilty so the but i'm still back to the original question at the time of the i j s proceedings in two thousand and one was this a conviction that made him cancellation of removal be an aggravated felony in two thousand and one thousand and one that's what i was asking and not a wobbler but a but it's just i think no i think at the time it was it was it would make him ineligible because it would qualify as an act felony trafficking conviction at the time which is one of the differences i'm not sure i didn't analyze it under the change in law partially i might add because if petitioner thought that was incorrect then the time for him to challenge it was that either through appeal or through a motion yeah but i d nail that down and i understand my rebuttal that there was that he has to do something in order to start this tolling period now we're talking about diligence that's different right so let's get back to your second that other point if it's the later convicted the conviction were later set aside because for actual innocence would that affect your argument no your honor it doesn't change the fact that the two thousand and one removal was means he must come within the rubric of the most driven you have to show one of the regulatory exceptions which you can't or you have to show equitable tolling which again he can't because he doesn't have the triggering events the fraud the deception the error in two thousand and one and he doesn't have the diligence starting from the  council thinks that he does have an error in two thousand and one it sounds like we're not really entirely clear on that point but you're relying on truncate which is that there wasn't diligence is that a fair yes your characterization yes your honor that that six year gap is determinative in this case for his acquittal told him he can't move that ninety day window without showing that he was acting diligently during that time and diligence may have been engaging a lawyer appealing right that's part of the argument here is that he didn't knowingly waive appeal but it seems that he did because he never appealed for mexico i mean if the argument that had been made is that all he wanted to appeal from mexico he didn't i mean it might be a different case if he had appealed in the boards that oh no you waived it well then ok maybe without a question but that never happens he didn't appeal from mexico instead he just came back to the united states demonstrating not diligence and then he laid low until he was discovered by department who had security and that's when he actually started acting that's when he went to post conviction relief and started filing a motion to reopen but that was very very late and beyond the period for  the ninety days your honor that there are no more questions i just might refer to one issue that was raised in petitioners brief that suggested perhaps there might be a constitutional problem with not requiring the board to  case which it may or may not take up the issue of how equitable tolling affects our jurisdiction to hear motions to reopen it is there any reason for us to wait until that decision comes down before we address case i think that case would probably only think that that acquittal tolling doesn't apply then it's not going to help course and if it does it if it says it doesn't apply i think it would comport with this circuits law that that's my first cut at it but i'm not in my first cut out as well your honor i don't think it's going to do the outcome here because it might help the other if there was a tolling period because the supreme court might say oh you can't do it anyways but because there was no diligence there was you know he lacked that so if you put to put it differently if the supreme court agrees with the fifth circuit there isn't any equitable tollway right the supreme court disagrees with the fifth circuit then we have to confront the issue of equitable tolling so either way if we we we truck through on our law we will we will afforded the appropriate review