john ashcroft for having been born there the question except for having been born there the question before the court today is whether mr arriola can be permanently banished from the united states based on a deportation order for driving under the influence that both sides agree had no basis in the law and without access now to the federal courts to correct this legal error the consolidation of two cases one of the challenge order based on his being deprived of judicial review in the first the second is a direct appeal of that order based on an invalid waiver of his right to appeal due to the  date in order is no good and the court would have declared the underlined order invalid how why would you do that because in order but learned in other words if we were to agree with you on the reinstatement unlawful now you can then reach the exact same issue on the direct appeal the direct appeal we can say that he was not given the right to appeal because lawyers that you can't appeal so he didn't immigration judge's decision and he was denied due process because that wasn't he alternately when he's been in that letter away by late and never found a letter a letter that the lawyers send in saying he waived his right but there's references to it throughout the whole and i think the case was clear on that issue and i notice you didn't really argue equitable talling which aren't quite correct i don't think we need to know and that would be another concept which has come up recently in other contexts if case is whether it was a valid waiver or whether the waiver was voluntary and we think that the issues were it wasn't a voluntary waiver because you got miss advice now the government argues well you say it advice and whether or not there was there was a voluntary waiver and that's really the key issue the key issue here is that his advice was not correct he did believe that there was no review in the federal courts at all  was ninety eight ninety eight would have reasonably could have really been expected to advise his his client and that he had a right to challenge the classification from this country because the ninth circuit hadn't yet overturned that that decision i'll render in other end of the court said he was not deprived of this right to judicial review and that's why he can't challenge this again why because  process there was no good process challenge in our ranking that distinguishes it also misinterpreted restraint and tipping court decision on whether a new law can apply that to actively or not and as this court has made clear just recently in the summer if a case is not under active people and the public change of law then you've got to show cause and prejudice well you have to show it was a good reason not to appeal your case and what was the reason this is lawyer said you can't you cannot appeal that's the cause and clearly he's been prejudice which bars any review or reopening of a prior order that has been executed and where the alien has then committed a criminal act by illegally reacting country that's exactly what happened in this case and so our first argument is triggering events then was deported and illegally ranchers country he took the law into his own hands by pursuing self help in fact your honor i would point to the record that indicates that says that came back to sustain day that he was deported this is not a case where the law changed and he was struggling over what to do this is a case where he plainly violated the law by coming back on the same day that he was help interpret the immigration statute section two twelve see that yes that that statute just not preclude criminal aliens from applying for discretionary relief and mr al durango of the country and tries to u record and i would point the court to case number zero two seven one six one four that's the appeal of the reinstatement you know looking at the administrative record in that case i would point to court two pages two zero five two two eleven that administrative record it was only after the immigration judge repeatedly told him that quote it's a very important decision that you're making because it has many different consequences record but your honor at the point i want to make is that this testimony of the hearing which is accurate it's transcribed this is what happened at the hearing conflicts with the declarations that they've submitted and it undermines the declarations for example the declaration of his sister who just submitted supplemental supplemental administrative record page forty five test when the immigration judge ordered him deported my brother clearly stated that he wanted to peel t is well basically that the prior counsel told the petitioner that he couldn't go to federal court but there was no way he could get reviewed in the court of appeals or in the district court again the administrative record belies that that court which is the board to review my decision see if my decision is correct this is part of the process these are how laws are changed then the immigration judge says that at page two of seventy two a way if you do not appeal and you have given up your right to appeal a change in the law or a change in the case law may not affect you as it might someone who is on appeal then i would cite to the court further in the record at page one ninety nine of the administrative record only apply to quote lawful departures i think the term in that statute was departures and the court said it has to be a lawful departure well it's a different statute and this statute i the court said that there's no evidence in the in the statute quote from the text and background of section thirteen twenty six that's indicate no congressional intent to sanction challenges to the creation orders and proceedings under section thirteen twenty six and there's no text or background of this statute either that evidence is a congressional intent to apply only to lawful deportation orders so therefore i would we would argue that it doesn't apply i guess i can't reserve any of my time can i as of you know was not a the board decision and that was in the published decision so i'm not sure when the underlying immigration judge decision in that case what the board had to the courts of appeals people were challenging that decision right and left because they thought it was wrong and so we had several cases in our office going up to the court that it just happened that trinidad came down and then decided the launch of the board was wrong about what mr carden should have told that same issue are pending before this court yes you can you go on and i'd stand that myself and on several occasions over the patching mechanism here your court and and and that's civil cases together that are of the same issue i'm very briefly on whether attorney actually gave me when i was a valid waiver and i we think the record is clear that wasn't the bottom line mr are real that cannot be deprived of his right to live in the united states with his family he's been a permanent resident  all his life he cannot be deprived of that based on the board error of law that has made it clear they are by this court solely because he decided subsequently drew me into the united states if the government wants to try to court him for that illegal reentry they could try to do that no one make that clear they could try to do that such me for that subsequent act in a subsequent hearing in a due process hearing that issue would come out the government might you didn't have the right to enter illegally he would still have the right to apply for discretionary relief from deportation and the court would actually consider whether that offense re entering the united states after an unlawful deportation the court finds that there's a passionate dispute we think it's clear that the administrative record here is undermines the declarations but an evidentiary hearing is not necessary because that hearing has already occurred in the administrative context in his removal proceedings