a government appeal and there's only one issue that this court needs to decide today and that is whether or not to uphold it district court dismissal of an indictment based on a now vacated administrate of all panel opinion that has been issues the only issue in the panel opinion in the us is care to opinion was the issue of the validity of an administrative regulation implementing their reinstatement statute an administrative statute that was the only the panel opinion the different court judge in this case applied that administrative law opinion to the indictment dismissed the indictment on that basis so now we have an on bank opinion involving the same issue that reverses the panel opinion on the collateral attack on the underlying deportations the one hundred seventy per patient the ninety nine and also the two thousand and one and he rejected all those arguments and there are number of reasons why he did the first problem the defendant faced was that the defendant had order the defendant also needs to establish prejudice and in this case at the time of all three deportations ninety seven ninety nine and two thousand and one that offended had for aggravated felonies and he had two he had a gun conviction that was nicer case law at the time that said that an alien with a gun conviction like this defendant could not get to trial so you believe and also that he cannot get his gun conviction expunged so the defendant's argument that well his lawyer was  is an issue that has not been fully briefed by the parties perhaps in the wrong format i requested the opportunity to submit supplemental briefing you know twenty two letter if the court feels that the issues do require for the briefing i do request the opportunity to submit that  sound basis for challenging decision in morality input your own in fact your honor i believe that the decision in rallies provides an alternate basis to uphold the district court the government's correct  certainly the court found that the irony statutes that relied upon did not violate congressional intent and individuals who are in reinstatement proceedings are not entitled to a hearing before an immigration judge however the government urge theory on the court that the court adopted which has a significant impact in thirteen twenty six basis that theory is that a reinstatement proceeding is not a remove all proceeding as a matter of statutory construction judge kozinski found writing for the reinstatement proceeding is a different species not a species of the move will that congress did not intend for reinstatement proceedings and removal proceedings to be equivalent and that is the sense is extremely important for thirteen twenty six cases  because the statute as well as the guideline use a very specific terms that are terms of art within the context of immigration law as well as criminal law thirteen twenty six requires proof of a remove all which had earlier been defined to include remove removal congress did not consider reinstatement and remove all to be equivalent so what judge crimes he has done is has carved out a procedure to expel individuals from the united states which is not included within the statutory terms of section thirteen twenty six in the past when congress has modified its immigration laws for example when it streamlined the definition of deportation remove an exclusion to be only removed will congress also streamlined the thirteen twenty six statute and change the language there to also state that a removal was what was required in later modifying the reinstatement proceedings congress did not modify section thirteen twenty six to state that a reinstatement proceeding would also be permissible a to prove a violation of section thirteen twenty six now this is a complex issue that as i indicated was only very briefly addressed in the papers and it's based on a long history of findings with the end of this court as well as other courts that the terms within section thirteen twenty six have important legal meanings and so for this court to now conclude based on the government's argument that a reinstatement is adequate to meet the government's burden would fly in the face of long standing authority regarding what is required under the thirteen twenty sixth actually it essentially the government is attempting to have it both ways the government urged one theory on the morale of the secured a court that a reinstatement is different therefore lesser proceedings are required lesser due process is required now the government wants to argue that a reinstatement is adequate to prove an element in a criminal case even though an individual in a reinstatement proceeding has as the panel and morale is identified no right to submit evidence no right to present witnesses and may only admit to or contest the allegation of removal so it is completely inappropriate for the government to now argue that that reinstatement proceeding can be used as the basis of a criminal prosecution in a section thirteen twenty six  evidence before the district court at our bench trial was that the defendant had been expelled from the united states pursuant to reinstatement the government did not prove and the government did not indict to mr to foyer on a theory that he had ever been subject to a removal proceeding or remove all order therefore the evidence before the district court only supports the conclusion that he had been expelled pursuant to reinstatement and the district court can now be upheld on the different grounds provided in the on bank opinion which is that a reinstatement proceeding is not a species of removal therefore as a matter of statutory construction the court is free to conclude that section thirteen twenty six requires more than the proof that was offered by the government in the district court in this case  order of the defendant has returned to the united states and a prior remove all order had been entered or the defendant is present in the united states and has an aggravated felony conviction and is not a permanent resident and can be put through expedited removal proceedings those are two forms of expedited proceeding strictly speaking the second one is not a reinstatement but so what triggers the need for the reinstate the attorney essentially violated every rule of good conduct of an immigration attorney at every stage of the case he was not in gauging in discussions with the client regarding possible remedies of relief he was  not asking the court for a delay of the proceedings when he learned that my client was going to be late he allowed the proceedings to go forward in absentia which resulted in my client losing his opportunity to appeal he had initially promised the immigration court that he intended to move to expunge gun conviction and then he failed to do that without discussing that with my client and the only reason that mr boyle was not eligible for section two twelve's the relief was that gun conviction this was a  case based on when the order to show cause was filed and the attorney initially notified the court that he was following the appropriate practice which would be just to expunge that conviction our office retained an expert angela being who advised the di that in her professional opinion it was appropriate for the immigration attorney pursue to expungement and his failure to do so qualified as ineffective assistance of counsel if you comply with was rather your honor was out of compliance is not necessary under section thirteen twenty six case and this court has never so held the only case that i found that addressed the issue was a district court case dorsett cited in our brief in which the district court noted that it would be absurd for a defendant in a thirteen twenty six case to be forced to comply with was not to because what happens is he's deported from the united states he only learns of the attorney ineffectiveness when he returns to the united states is being prosecuted with a serious federal offense so just recording dorsett found no reason to impose those other requirements on an individual in a thirteen twenty six case and i would add at several points the government tries to impose on mr foy requirements that would apply in immigration court without acknowledging that this is a criminal case in which the protections must be higher for a defendant who is facing a serious criminal pros now the record is fully developed the issue on the second issue particularly the issue was fully briefed in the district court the district court issued a written order denying the request and all of the matters are presented here and that would simply result in a delay of  a resolution of the issues which is unnecessary considering that everything is prepared for a decision ok thank you very much for your argument and you immigration nationality act section two forty into forty one to forty one is a reinstatement statute to forty says that an immigration judge must conduct proceedings involving to portability so all they were doing was reconciling those two statutes as a matter of administr so just as a practical matter they are different what happens is a person is given a hearing they're deported if they come back again and that original order can be reinstated it's a different process so i don't think there's any issue i think it's it's really kind of a basic issue that there is a difference between the two now as a practical matter what do we have to show for thirty twenty six prosecution well the criminal statute is very open ended like many criminal statutes are someone's been excluded if someone's been denied admission removed the purported even if someone voluntarily departs personally to an order once that person goes from the united states to another country and then comes back without permission fresh thirteen twenty six offense starts and we can prosecut removed physically removed to another country and then comes back to legally that person can be prosecuted for twenty six now the indictment in this case that was dismissed didn't talk about orders didn't talk about reinstatement talked about deportation and that means physical deportation and physical removal and that in fact is what happened in ninety seven ninety nine in two thousand and one there were some stipulations in this case that were used at trial and in the stipulations the defendants are not dispute in fact stipulated that there was an order in ninety seven ninety nine and two thousand and one and and also stipulated that the defendant was physically removed to the border of the united states of mexico and he walked across that border so there's no question that there was a physical removal or deportation in this case that a basic issue at trial and it was resolved in favor of the government also when the when the judge in this case because it was a bench trial determined that the defendant was guilty beyond a reasonable doubt the judge made a number of findings on the record and the judge didn't  on ninety nine and two thousand and one the judge also made a specific finding that the defendant had been subject to an order in ninety seven and deported physically removed to the united states and ninety seven and of course earlier the judge had found in favor of the government on the validity being reinstated in ninety nine a few thousand and one all of those reprove the trial in addition i mean the only issue here are the dates of the indictment there's no question that there was a physical removal in this case so what was the motion that was filed in the district court basically was about these two dates one thousand nine hundred ninety two thousand and one but dates are not an element of thirteen twenty six there are only three elements you must be an alien you must be deported and you must come back without permission or be found in the united states without permission after deportation so there is a temporal element there you must be found in the united states after deportation but it doesn't matter when you were deported you could have been deported twenty years ago you could have been imported one minute ago so the date is actually irrelevant for purposes of thirteen twenty six so at best the two dates in this indictment nine hundred ninety nine two thousand and one were surplusage they were defective form they really don't matter because the government didn't have to prove the date another way to look at this is what if the indictment didn't say anything about ninety nine in two thousand and one without even a problem and the answer is no because those dates were irrelevant now the other thing about the dates is that the dates were not just random dates ninety nine to two thousand and reference the earliest indictment and that indictment was proved a trial and very brief go to the ineffectiveness argument are there was a lot of factors that are normally required in any case raising ineffectiveness and that's because it's very hard to evaluate and if ineffectiveness claim unless there's some attempt by the defendant to go to his attorney and have the turning explain what the contract was between the attorney and the defendant and also how the attorney screwed up in this