the government concedes that he kept his right to appeal during his immigration hearing which prevents the immigration service from having authority to remove him for thirty full days to allow him the pendency to file that appeal the government  whereas here there was no lawful authority it creates a situation where immigration can remove somebody from the country and so long as it is done by an official his reentry cannot be prosecuted and not unlawful remov the immigration proceedings and that's a violation of due process and so he can challenge the prior deportation if he's criminally prosecuted right for illegal reentry if this is that kind of case  is a thirteen twenty six d collateral attack on his deportation mr medina is saying that as the statute itself deportation or removal isn't just the physical taking out it's the physical taking out pursu removal without authority because the orders were stayed would put the alien back in the exact position he would have been but for the fact that he'd been removed this court refused to consider that the alien had departed at all when he was removed find case is that this case is no different from cases like road tovar or cases like mendoza lopez we believe that the government is able to rely on the defendants for moving from june thirtieth of two thousand and four in his subsequent criminal prosecution the reason being that front of an immigration judge and order is issued by the immigration judge and that person is removed under color of state law the reason that it's keen for the person to go in front of an immigration judge is because number one that and the slippery slope type arguments we're hearing but more importantly than deportation if you're removed in violation of a stay that you've been removed in violation of due process what the supreme court said is that congress never intended for you to have any challenge at all but then they said and this was  section thirteen twenty six d by congress in one thousand nine hundred sixty if you've been if you want to challenge your deportation you need to show those three problems and one of them is prejudice and in this case you didn't show any prejudice with a thirteen twenty six  convicted of serious crime that's roger i'm reading over his wife who has been three years in prison that's correct and so if he had filed an appeal even if you got the best immigration attorney in the country and even if he had deportation a violation the stay of some other regulations in other words what those cases are getting at is they're saying that homeland security can't deport someone in violation of the law and then say that because he's gone he has abandoned his appeal and the court no jurisdiction those courts don't cover the issue in this case those court cases don't cover the issue in this case the issue in this case is completely different it's whether if there is a deportation in violation of due process if that deportation can still be used in a thirteen well established that congress can take a certain event and congress can make that event an element of a crime even if there are constitutional problems with that event let me just give you an example in those alone the supreme court relied heavily on lewis versus the united states rights to counsel what the supreme court said is that congress didn't talk about a valid conviction it only talked about a conviction and since the defendant in lewis had a chance to collaterally attack that conviction in state court but he didn't do it supreme court created that right they said if you're going to rely on a deportation you have to at minimum afford the alien the right to collab going to attack that and the alien in this case exercise is collateral attack right and he suffered no prejudice as the court has repeatedly pointed out in this  case in which case in this case with the you know virus case he did he did have a collateral attack in front of the district court and the district court found that there was no prejudice because again no possible grounds for relief and he was an aggravated f one issue that we haven't really touched on too much is and this can perhaps dispose of the case without even getting to the other issues is whether the defendant waved his rights to appeal i but there's conflicting evidence in the record but there was a factual finding by the district  record what factual you mean is as to what put that phrase on the written order means correct from looking at that and also from looking at the evidence other evidence which would include the fact that if the defendant felt that he had an appeal it's true he never filed one there's no there was no declaration ever submitted into the record by the defendant as part of this case saying that he had intended to file an appeal and i think when you consider all of that and in the totality i think that it's possible to affirm the district the bottom line in this case again whether we call it a question of statutory construction or whether we call it a collateral attack the bottom line is that this is a collateral attack he is trying to argue that he was not deported for purposes of a prosecution he's bringing this claim in something other than a direct appeal that by definition is a collateral attack he suffered no prejudice in this case i admit that there was a technical violation of his rights but this is not part and parcel of a deliberate attempt by immigration to plot his rights nor is it part of a eliminate the prejudice requirements in order to create a prophylactic rule designed to encourage immigration officials to do a better job requirement of prejudice is sufficient to protect and aliens due process rights i said that there was no error in this case and i asked the judgment of the district was impermissibly done because probably twelve i wasn't told about his right to appeal but that's very different than an order that is state by us regulation state by definition means not enforceable there was nothing no in forcible matter of just argue