at age eleven as a legal immigrant and have permanent residence status for about fourteen years he attended schools in the united states his family is here he's married to a u s citizen basically when all the dust settles in this district court granted our motion to dismiss initially then on a motion to reconsider gratian from the government changed its mind and denied the motion primarily in fact only on the basis that mr valencia received a form which had a printed notice on the back concerning a fee waiver and i think it's really important that the court understand the context that this all happened in because it goes really to the heart of the matter and i'm looking at the transcript of the immigration court proceedings at page one fifty two of the supplemental excerpts of the record and there the judge makes note starting at line five now we're giving you the forms there miss montage of all is just giving you the forms now here's what you have to do you have to explain on the forms why my decision is wrong as a matter of law ok if you don't do that then they'll dismiss your case you can't just simply say well i want to stay here i don't want to be deported and i have kids that won't get and the judge goes on to explain you have to explain why either my decision or the board's decision is wrong now i just explained  legally i have to order you deported and can't consider all those things so what you're going to happen to say is that the board decided that this is an aggravated felony and that you disagree with the board's decision to you enter stand my cl sir judge i just told you what the legal issue is and the judge says that you don't think it should be an aggravated felony i mean that's why you're appealing all right then the judge goes on and this is i think the the a thing now there's a fee involved and you have to have that decision your appeal your notice of appeal mail to the address on the form it has to be there for the date i just said by july the twenty six thousand nine hundred ninety eight has even pained this you still have to wait that long period of time to judge what you mean polanski you said that there was a possibility of being incarcerated in florence and still waiting oh yeah the fee is just for them to consider your appeal all right judge it's to keep your case going whether you win or lose has nothing to do with the  so they can deny a judge the fee is to pay for the cost of everybody that has to keep track of your case and he questions no sir that concludes the hearing so regardless of the form now there's no surprise about this fee if i can relate back to that to the hearing on our motion to dismiss before the district court our expert testified about fee waivers and the fact that there was such a form so judge specifically includes in the colloquy and notification under these facts i think so because they're right in the record why would it be any different in this case than with any other alien that it doesn't your position have to be like the obligation in a criminal case after the sentences imposed to notify the defendant that he has a right to appeal that if the immigration judge failed to include as he's discussing appellate remedies a specific oral notification that the fee can be waived in appropriate circumstances that is an invalid admonishment of his administrative appellate remedy i'd certainly like to have the court rule that way i am wearing that because that is that what you're urging upon under the facts of this case i am we have an unrepresented prisoner who is before a court by himself and the contention is that simply handing him a form of upon which the reverse on the reverse of the form in english is the statement that he can obtain if the waiver is sufficient but i thought i thought the supreme court told us in united states versus the rule that we have to look at more than just the oral colloquy that you have to consider the documents and all the other evidence that is part and parcel of the hear mean isn't that why we give it to people in writing so that they are on actual notice this to what their room what their rights are that's true your honor but in this case there's a dispute as to whether he ever received any of these forms in the well i think based upon the record that we made at the motion hearing that he clearly would have been eligible here we obtained testimony from him about his finances the fact that he was indigent the fact that he couldn't but that he aggravated felony determination for duis and our position is that that at that time the model line is decision was in place and the immigration judge told plenty of  my if you appeal they're just going to dismiss it our expert at the hearing roger wolf an immigration lawyer also testifies that testified that that would have been the result that the appeal simply would have been so i'd like to  the united states attorney on behalf of the government in this case basically you have two fairly simple questions that have been raised by the peel one is whether the district court abused her discretion  provided the foundation for demonstrating that in fact there was considerably more to the documentation that had been provided to the defendant including two pages of that form then had originally  and basically what the district court judge found was wait a minute we all thought that we had a one page form and that's all that the defendant had received and all that it says on that form is attach your check nothing about the waiver another form which would also include it in the packet that he would submit to the immigration authorities saying this is why i need to have the fee waived now it's been suggested here and i think really for the first time  almost a brand new argument that oh you've got to explicitly orally as an immigration judge explain this whole feel waiver possibility and i would suggest that that's not a claim that was presented below and really ought not be considered at this stage the only thing that was suggested below was that when in fact even the whether or not there had been any information about  caught flat footed and did not perceive that there is a major shift going on and was not able to respond immediately detect there was in fact a deficient exhibit that was being presented so what we have here is  however the defense counsel got that form when it was presented in evidence it didn't tell the whole story and the judge was entitle to make a judgment based on the whole story i e both pages of the form and the rest of the packet which is replete with discussions about where you send the fee waiver the contents of it a particular separate fee waiver request form and so forth and so it clearly was an appropriate case for reconsideration in fact i would have considered abuse of discretion not to reconsider when basically the judge would have been making a judgment on a completely flawed basis that he did not know about the fee waiver possibility as far as the substance of his motion to dismiss you simply don't get there because the there was appropriate information provided to him with regard to the availability of an appeal fee waiver and he chose not to go forward he has not exhausted and thirteen twenty sixty one makes a very clear congress says in order to make these kind of  that we're talking about confrontation on of the sixth amendment is clearly a trial right and that's why courts in all kinds of non trial situations have perpetually use affidavits and hearsay without any kind of problem is specifically provided for by a rule forty seven of the federal rules for procedure and i provided you with a twenty eight jail letter and one of the which one of the scholars is that you don't worry about anything besides privilege when you're deciding these kind of questions her affidavit was primarily foundational to show oh this is what the kinds of forms actually were that were being referred to in the transcript and so as a political question it was neither an entry problem nor confrontation clause from any further right rebuttal i realized that i never actually answered the question from the court about where i got the form yeah i got the form from roger work and he printed it out from his computer he's an immigration lawyer i never had or you know where it was i'm all for i paid for i had no idea he said here's the form we use and i label that and used it i had no clue that there was more to it nor did i ever see a pack showed that form to the lens here my who testified first he said he'd never seen it and i showed it to mr wolf when he testified and he said this is the form that you will be used to to follow and appeal and that's where the form came from and just one other thing i'd point out the court is that the motion for reconsideration is just simply doesn't meet this court's own requirements as i've put out in the brief if it's it doesn't meet rule fifteen on thank