good morning honors robert noyce on behalf of  of two seventy three point five aisle ation of state law which is not a crime of moral turpitude and therefore that can but not be use is the basis for thirteen twenty six prosecution in federal court nor can it be nor can the two thousand expedited removal be used either because he would not have been eligible for and for the  expedited removal if it had not been for the nine hundred ninety eight improper invalid removal for a crime which was not a crime of moral turpitude in one nine hundred ninety eight and not a c i'm t well so i guess i and this is i think the question is just yours asking so how does he get i mean how she has to show prejudice how does he show prejudice if that's an aggravated felony at that point think and i think this case shows why we can't really speculate about what would happen if a different procedure would have been used because that's a different argument if you're arguing there is both like  the credit and they're having a little difficulty answering that straightforward matter but your argument preliminarily it seems to me if it's really structural there and that you don't well that's and that's what i was trying to articulate is i think this case demonstrates why you don't want to go back and speculate about ok so you've got your first argument is you don't need pretty correct ok then after you're through with that argument you just assume that the court doesn't accept that argument and that you do need it what is it just to try to get the question yes great in your mind yeah and the argument is that it's not really clear whether or not he did have an aggravated felony in this case because if you look at the documentation that was submitted by the government he has it has to be shown that he had a sentence of a year or more for that to seventy three point five to actually be an aggravated felony and it's not clear from that there's some ambiguity in the paperwork whether because he was placed on probation and he's done about two hundred some odd day boxes are checked as far as the the the execute this execution of sentence was suspended or whether the imposition of sentence was suspended he was placed on probation he wasn't sentenced until two thousand and nine so it's that determinate the determination that that's an aggravated felony because ultimately it's an aggravated felony i understand that he went through an expedited process and that that was you know there were problems with that i don't know how we order in order to succeed in a collateral attack to a conviction under a u s c thirteen twenty six and i'm just looking for any authority you might have for the proposition that the rock didn't need to make a showing of prices due to the two thousand expedited removal order well i think under concho lopez the fact that the fact that there may have been another procedure available there is an unpublished position as well as other cases dealing with other types of removals such as stipulated removals administrative error purposes well that in those situations even if an inappropriate procedure  as of the movie does that make a difference and if so why why i have several responses to that question the first is that it's simply incorrect the documents in this case sentence which was suspended and this court has held that a three year suspended sentence a sentence that is a one year suspended sentence would be sufficient to constitute an aggravated felony in these circumstances and on top of that the defendant did not raise this issue below did not raise this in his briefs here to this court at no point before our argument today did he assert that this domestic violence conviction was not an aggravated felony so he has waived that argument and on top of that he simply incorrect the conviction documents here are clear they do show that there was a three year sentence that was suspended execution of which was suspended in well there's no prejudice here your honor because in this case had the defendant in two thousand been given all of the process that he presently claims he was entitled to the results of that removal would have been exactly the same brought been brought before an immigration judge he would have been removable not only on the basis of his aggravated felony conviction but he also would have been removable by virtue of the fact that he falsely claimed united states citizenship when he was entering the united states in two thousand he would have been in eligible for any form of relief because of his i hated conviction and therefore the results of our removal proceeding whether it was an expedited removal proceeding or whether it was a removal in front of an immigration judge would have been exactly the same there's no prejudice and the defendant cannot with a straight face make the argument that had he retained his lawful permanent resident status in one thousand nine hundred eight he never would have falsely claimed united states citizenship in two thousand as set forth in the p s r when the defendant had lawful permanent resident status he on three separate occasions falsely claimed to be a united states citizen this is before he loses his lawful permanent resident status so even if we assume that the nine hundred ninety eight immigration judge removal order was invalid he is not entitled to any other relief in two thousand he is removable because of his conviction his removal because of his false claim to united states citizenship and there's no relief from that removal and moreover your honor your honors reinstatement situation the only thing that the court is looking at is whether the reinstatement procedures were properly followed in this situation we have a defendant who has committed a separate criminal act the concern that this court has in a reinstatement of removal situation is that if you only allow a challenge to the reinstatement and do not allow a challenge to the underlying removal you affectively denying the defendant the ability to challenge not only the reinstatement but the underlying removal and that's simply not what you have in this situation this defendant had the opportunity before trial to challenge both the expedited removal in two thousand and the immigration judge eighty eight and for him to succeed on his challenge to his thirteen twenty six charge he would have to show that both removals are invalid he had the opportunity to do so and he failed as to both in front of the district court now  the only way that he can prevail is if he again shows that both removals are invalid he cannot do so because at the very least in two thousand he had suffered no prejudice from any any departure from the process that he was entitled to hear you say on page eighteen of your brief that in two thousand i hear him before an i j would have been pointless because mr is wrong appears to have been an aggravated felony but the cases you basis for contending that a hearing before the i j a in the company due process protections are would have been pointless when someone appears to be an aggregate especially when the case law has not been sampled at the time that the defendant was before the immigration judge it was settled that a domestic violence conviction under two seventy three point five was an aggravated felony and so at that point  he would not have been entitled to any relief from a movie that was what the immigration judge contended in this hearing and that is that remains the line a circuit even more recently he still is it still depends on whether the player did it absolutely depends on whether there's prejudice because at this point i'm collateral review the defendant must show not only a due process violation but resulting prejudice in order to show that this permanent resident in two thousand so my question was if i didn't say what i said just asking whether if there were an error whether it would be struc there he would still have to show prejudice otherwise that would completely eliminate the second prong of the fundamental fairness element that the defendant missed established in that case it would be as if a defendant came here after hearing before an immigration judge wherein his due process rights were violated and there was no resulting prejudice and all he had to show was that his due process rights were violated that would effectively be what your honor is proposing that no prejudice would be necessary to be to be which is the same way saying it's structural wear and we wouldn't be here if if arguing these fine points about whether or not to seventy three point five in this case is an aggravated felony or not district court as far as whether or not it was an aggravated felony whether the defendant received a sense of a year or more but the district court relied upon the police reports in determining that and at that time it was before the more recent decisions which have said you can't rely upon police reports from whether or not this was an aggravated felony at the time and determined there was no prejudice but the most the first line of attack he said that this it can be determined whether or not he does have an aggravated