question presented in this case and a provision entitled limitation on collateral attacks on the underlying deportation order card stated that a non citizen may not challenge the validity of his removal order unless he demonstrate exhausted any available administrate of remedies but they're moving the proceedings improperly deprive him of the right to just chill review and that the entry of the order was fundamentally unfair three express mandatory and conjunctive or fireman reflect congress's sensible determination that non citizens should challenge their own voters in their room of proceeding using the well established after tory and regulatory procedures that exist for that very purpose congress reasonably prohibited non citizens from taking the law escape hatch for the rare case in which no prior opportunity for a view was available resulting in fundamental unfairness respondents case does not fall within that narrow class and his argument would create a significant loophole in the statute respondent plainly could have brought to be a court of appeals and if necessary this court the argument that is prior offenses not an aggravated felony just as others later did and even after the court's decision and we have respondent could have sought to reopen his removal order be a reading of that term available so i think you know we would follow this court's decision and ross i would i think it's largely common ground here that there are situations in which remedies would be unavailable and i think the fact that an individual said he was waving them wouldn't necessarily be nobody idea doesn't work on respondents argument even in the situations that respondent points to for example where the board of immigration appeals issues an order of removal in the st instance and it doesn't have statutory authority to do that statutory and regulatory procedures for accounting removal order well established and as a matter of fact individuals regularly bring these types of claims to the board of immigration appeals the court of appeals and if necessary this court so you know for lack of a better way of expressing it i mean smith has been in prison for years and exhausted every possible remedy he's there because he did crime x we should later we say but the government ha no power substantively to create that crime and then he can go to habeas under teague and he gets out but here where it seems like the same situation the government had no power to make this a crime in this way and mr jones comes in we put him in jail now is there an anomaly in that and and i can't quite  work it out i'd like to get your response certainly justifier so i don't think that there is an anomaly and the reason why is because in the context that you've noted the criminal conviction and then the subsequent hevia st meeting that's an actual innocence claim the problem here for respondent i think is threefold the st is that he's not actually innocent of affection one thousand three hundred and twenty six offense as all nine justices of this court noted mendoza lopez and i think is equally true afterwards an error free removal order is not an element of section is made clear that it does so based on hey b s courts traditionally equitable jurors equitable power and that it wouldn't apply actual innocence of congress has spoken clearly here you have the inverse of both of those situations there is no traditional equitable power to excuse the time bar and would not require the government to actually agree on the merits but would be a mechanism of getting the issue in front of the immigration judge or the board of immigration appeals and the rd and this is the one that changed in two thousand and twenty is to ask the immigration enter but it is certainly true that respondent had other mechanisms to seek relief rather than as i noted earlier simply taking the law into his own hands and reentering despite an extant removal order that he had never challenged so i assume in those circumstances saying that you don't see a constitutional issue here but i do you've given me a lot of potential mechanisms in which a in which an alien might be able to get a this order reverse but i don't know that there's a legal opportunity to do that meaning it all depends on a whole series of discretion in lewis we found it significant that a convicted felon may challenge the ability of a prior conviction before obtaining a firearm that's basically your point here that there is an opportunity to do that but i'm not clear on this record before us if that's the case so should we be relying just on your representation or is this one of the issues that hasn't been adequately addressed below that you for that reason you say we should not address respondents constitutional arguments at the justice center i think the primary reason not before the agency and taken it to judicial review in the circuit had said no are all those people if they can prove that they have no chance to reopening and the ability to apply for the attorney general's permission to to apply for admission a community and in the statute it out but it but for the reasons i said i don't think there is a separate constitutional problem  unavailable at that point there are you think it's a little bit unclear or behind in the hypothetical that you're imagining of course this is a procedure that plane on the face of the statute and the regulations and so i think i had a little bit before saying that you know i can fill in this statement an honest make it unavailable but instead now now let me switch to another hypothetical and say that the immigration judge doesn't say you have no place to take this but instead the immigration judge says and quite long  crime is a crime of violence and there is no way that you will receive any relief from anybody ever again there are again i think that would potentially fall into this bucket three i think it's probably less likely there honestly than your prior hypothetical just because again i think back to sort of the substance of what you're going to get rather than the procedure available for review and i think particularly in an instance like this where we know from the statute in the regulation that review is in fact available and i would hesitate before assuming that it would be unavailable in my case but you think that's a pretty close case by your honor so how is that distinguishable from this case because in this case there's just as much an  board of immigration appeals in a court of appeals and even this court with somehow be incapable of providing relief to individual there i don't think that true where they came by simply not on the side of the individual of course individual challenge like that all the individuals with respect to this issue pact is clear and it resolves the question presented in this case the immigration judges determination that respondent prior offense qualified as an aggravated felony does not demonstrate as congress required respondent to do that he exhausted any available administrate of remedies or that the removal proceedings improperly deprive him of the opportunity for judicial review respondents contrary interpretation would create a significant loophole in the statute it would affect only remove section applies regardless of whether it is already determined that a particular offense was not removable this court should reject that argument and instead apply the plain text of the statute and we therefore ask that the court reverse thank you  resolved on the narrow grounds that the invalidity of the order here is undisputed this invalidity point flows not just from constitutional and background principles but directly from the plain text of subsection d that provision sets forth a way to quote challenge the validity of the deportation order unquote that the language necessarily assumes that the order on which a section one thousand three hundred and twenty six dollars charges based must be valid otherwise satisfying subsection d's three requirements would have no effect the order would be deemed invalid but there would be no consequence the government in mid has much on page nine of its reply brief explaining that in validity of the order is a defense to the charge and once it's clear that if the order is invalid the charge cannot proceed the proper result here is also clear this order indisputably invalid leo calif stablish that before this proceeding ever began and the government has never claimed otherwise the government's only response to this argument is that subsection b requires any defendant who challenges the validity of a removal order to make the provisions three showing but there is no need to challenge the validity of a room removal order whereas here it is already undisputed the order is invalid instead the orders undisputed invalidity requires dismissal without having to go through subsection d's three prong nd even if those three prongs govern here they are satisfied administrative remedies were not available because no ordinary non citizen could understand and formulate the complex legal arguments required to challenge the i a precedent under the categorical approach the government's contrary reading would not even cover the facts of mendoza lopez or any case in the twenty five years since the statute was amended we're not disputing that rationale your honor our argument is the statute has now changed fundamentally when congress added subsection d and that's where i started today which is when you look at the opening clause of subsection d it doesn't it unless you read the statute to presume that when the order is invalid the case can't proceed then satisfying those three requirements will have no effect so it's a is a congress inserted the concept of validity into the statute when it amended it by adding subsection d and the that's what i mean when i say that the government agrees that the actual de here is in validity of the order when you look at the language of subsection d there's no other way to describe what the defense is well counsel there are there are a lot of areas where you know the door closes and you lose the right to go back  arguing that whenever there is some kind of and i change or clarification in the law you do go back and reopen everything now as senate counsel noted in response to justice  question there are avenues in this case this sort of case to do that but your proposition seems to me to be limited to you know we now know this was wrong so we have to go unscramble  scramble the eggs not exactly your honor i think it's important to keep in mind the context here which is that the government is coming to court and looking to impose a new and further criminal punishment on the basis of  order that it knows is invalid and and that situation that your honor mentioned the felon in possession situation the lewis case explained that that statute was extremely clear that congress had concern for the validity of the prior order this statute is exactly the opposite congress added a defense that puts the validity of the order at issue and i would say it is extremely anomalous as justice briar's question suggested to impose further of remedies are so propagated that they would always be unavailable our argument is that they are unavailable in disgrace your honor because of the extremely confusing as ross put it nature of the categorical approach and the fact that there was adverse b i a precedent on the books and under subsection d from this opinion the court's opinion in iraq and in mendoza lopez both of those opinions ma clear that these requirements need to be read practically and and here flexibly and the fact is i think the most important point about the government's reading of subsection d is that it doesn't even capture the facts of mendoza lopez and the rule needs to be one that is particular to the context at issue and the government's approach here ignores all of the practicalities as our brief in the national immigration project brief explain the vast majority approaching ninety percent of individuals in detention are unrepresented in these proceedings and the suggestion that they could realistically formulate an argument  of the type required in this case is entirely impractical and just to be specific about that specific argument that supposedly was available was that in fact the crime of violence definition and section it's unclear in this case if mr palomar savio was represented and i think and interpret in the statute the court to take account of the reality that the vast vast majority of individuals facing charges like this are unrepresented but your question also suggests an important point which is that the government's position is exactly the same even if mr palomar sontag all had appealed and gone to the th circuit and lost and that goes back to our our st argument your honor and that argument is that it would be extremely anomalous to think that congress wanted to impose this particular criminal punishment when everybody agrees that the order was invalid and that both from the plain text where i started from the constitutional concerns i think the government confirmed today that the only case they can point to is aeacus and beyond being repeatedly question invalid or void on its face that is the extreme case we have here your honor justice prior how in your opinion the risk of repetition you know this the the  imagine the statute which is absolutely clear intent is mr june you're about to be deported and you will be under and you can attack that conviction if it is entered within the last ten years but earlier than that it's sacrosanct i mean can't the government  deport somebody all you had to do is look at the record it's there we don't care if it's good bad indifferent or whatever it is we don't want to go back into it you're not a portable well that's what they've done here with an exception that favors you he really wasn't driving under the influence thirty five years ago still are our focus your honor is on the fact that the regardless of the dui conviction everyone agrees m sorry i'm adding to your answer but i see where you're going if you lose i've tried to find out how many people are there likely that would be subject to maybe one maybe two maybe three people like your client who fall within the category of later on it was determined it wasn't a crime of violence like driving under the influence so does your case affect more than a handful of people and if he does not there's the attorney general or is there were a route that you could get relief administrative relief because your client has lived there such a long time so your honor the it is certainly not a particularly broad role especially as to the category that we are relying on today where it's made absolutely clear by a prior decision that the removal was unlawful and as to whether there's some other way out of this i think that's a question for the government i do need to address the representation from the government that a motion to reopen was available to mr trinidad aquino had not been decided but everything else about this case is the same could your client have moved to dismiss the indictment in this case on the ground so your honor we think that there are arguments that that would still be permitted and now it essentially be the argument that that type of order is void void ab initio and so no challenge is required but i recognize that the that code is more of an obstacle in terms of the limitation on this defense which is that to you can't challenge the validity of the order in the criminal case i think it's a far easier case when you have a decision like this is before the government files of the indictment before the case ever start that the removal order is invalid and that is a defense to the section thirteen twenty six dollars charge and really i don't really understand why it is different under the arguments that you're making in both situations that the individual would have been illegally removed that's true your honor and we but we think it's particularly clear that there's no need for a challenge to the validity of this order in the criminal case when the other side is not even disagreeing when everyone agrees it's already invalid and lea there's no need for a further challenge this is all about the text of that opening clause of subsection d and that's why our again our fundamental point about the text is that the government has never explained how or why even in a case where you satisfy subsection d's requirements the charges dismissed and the answer is that the necessary promise of this statute you have to read it as if subsection d begins with the words a charge cannot be based on an invalid order and then there's a limit on that defense well when it says it is in a criminal proceeding under this section and when may not challenge the validity of the deportation or and then provi some exceptions you are challenging the validity of the deportation order you think it's open and shut and it probably is open and shut but nevertheless you're challenging are you not no your honor i don't think so we're absolutely challenging the sotomayor counsel can you go on you disputed misra says argument about a motion to reopen and i do know that there's a time limit there but she mentioned other ways of the you attacking or getting this revoked i don't see that issue in the briefs before us or in the briefs or adequately spelled out for us to really consider that issue fully but i think the essence of lewis and other cases that we lie on prior convictions even if they are void or interval is that there is a way that a person can challenge that prior conviction independent of committing the crime that says don't possess a gun resolved by the court so to answer your honor st as to all of the other realm of the avenues that miss ross referenced we don't think any of those are realistic in any way but i certainly agree that that hasn't been adequately ventilated in the in the courts below and to the extent that there is a concern about the constitutional issue we have of course be happy to address that in more detail but  thought as to louis your honor it's extremely important to remember that that is a case about using a prior judicial order a judicial conviction not an administrative order and it using an administrative order in this context raises exactly the concerns that justice jackson and justice frankfurter inspector thought were unconstitutional which is to take the result of an administrative proceeding in which none of the constitutional protections for criminal defendants are provided and to turn around and use that to impose criminal penalties and i just go back to the government's invocation of aeacus not only has that been repeatedly questioned as being limited to war time but even in that case there was no argument there the order was avoided on its face i think the fact that the government can only point to the active itself maybe are better proof that there is a grievous and substantial constitutional question in this case and when you turn to the language of subsection d and ask if this language actually clear that congress intended to impose this punishment when everyone agrees that the removal order is invalid without any further  analysis we think the answer to that has to be no congress cared about the validity of the order and their distant there's no reason given all the other considerations to treat what we are doing here is challenging the validity of the order when it in to me making the argument that this is essentially a misrepresentation case as described in ross so that even if there was an administrative remedy on the books it wasn't truly available but as you talked about it today it strikes me that you're not talking about any kind of misrepresentation that you're instead talking about what ross's nd category is which is that the administrative scheme is so  that it becomes incapable of use am i reading you right now your honor i think it's most accurate to say we think the combination of the two plainly there was a misrepresentation willful or not and that combined with the fact that this area the categorical approach is already so opaque as the court put it in iraq so confusing no reasonable prisoner here a non citizen can use them and so we're not saying it's exactly like ross and but it is a in the circumstances here the combination of all of those factors certainly renders this appeal unavailable and the circumstances of this case will rule us was talking about  opaque and you're sort of taking both of those and converting it into a context where we're talking about substantive law and i'm wondering whether that's an appropriate thing to do honor so i think in this context substance absolutely blends with the process and the reason is that both ross and mendoza lopez talk about meaningful access to the  procedure at issue and whether it can be used for the accomplishment of a purpose simply being able to file a notice of appeal especially when there is a b i a precedent for closing the claim is not meaningful access to an appeal and it's also important to recognize that this issue just doesn't arise under the p l r a is that the claim in ross for example was an excessive force claim of course any ordinary prisoner can develop the facts to develop that type of argument here is an adversary proceeding against a non citizen in an area where everybody concedes that the legal doctrines are mystifying and opaque honor i think that this statute necessarily calls for a case by case determination but i also think that it's reasonable to say that in a case where you have to raise a categorical approach argument to overcome be i a precedent th appeal is not realistically available and the government has the likes of the refrain of pointing out that some non citizens have appealed and similar cases and i just it's important to the national immigration project point out eighty eight percent of individuals before the b i are represented that they are by definition not the ordinary non citizen and the question for the bail ability looks to whether than to ordinary non citizen could appeal in circumstances like this and we don't think it's meaningfully available in the way when you get wrong stamp on when and when they absolutely are on or even within the context of aggravated felonies many of the aggravated felony as are enumerated federal crimes if the immigration judge says you were convicted of a firearms offense under x that you absolutely any ordinary non citizen should be able to say yes or no to that but when you're in this opaque and confusing area and on top of that that i j backed by b i a president is misrepresenting the law to you i don't think it is a practical and reasonable approach to this statute to say that an appeal was available to an ordinary non citizen thank you minute to wrap up mr gerson and thank you mr chief justice i do want to emphasize again the narrowness of the rule we are proposing which is it least in a case where it is undisputed that the order is already invalid that no further challenge to the order is required in the criminal case that may be a narrow rule but this is case the government asked the court to review and it's the most extreme possible and that affects the textual analysis for the reasons i've said there's no reason for a challenge and it effects the constitutional analysis as i said even yack is their only case was careful to note that there was no argument like this in that case and in light of all of those considerations when you turn to the text in subsection d n a ask is this statute actually clear that congress truly wanted a charge for this particular crime to proceed when everyone agrees the prior order is invalid submit the answer has to be no thank you thank you counsel our rebuttal ms ross thank you mr chief justice if i could just make three points the st is that respondents lead argument today has invalidity argument is entirely circular of course he is challenging the validity of his prior removal order by claiming that it is in fact invalid indeed responded acknowledge that at every prior stage of the proceedings before the read brief and that's because in plain english what responde to do is challenge the validity of his prior removal order his argument also puts the cart before the horse it's impossible to know whether he is challenging the validity of a removal order until you determine whether that removal order was on his view valid  as my friend's comments to justice alito indicate his his theory i think is much broader than he suggests because his whole legal theory is that the law has always meant the same thing but if that's true of course you would have to engage in the analysis regardless of whether a court had already invalidated or or howled that a particular crime doesn't qualify as an aggravated felony on the nd argument that respondent made today the availability point i think it's argument is nowhere as narrow as respondent suggests because his view is that because the administrative scheme is ok as he responded to justice kagan and allen or non citizen in his position could never seek review and as i would say our primary cases mendoza lopez which held of course that there is a constitutional problem if an individual had no prior opportunity for judicial review and congress responded to that not by creating the letter d as an element of the offense as respondent claims but instead by creating a narrow affirmative defense in which respondent must meet the ones two and three is primary argument of course today attempts to just avoid meeting the one in two entirely we think the solution th and beyond what this court required in mendoza lopez and as i've already explained this morning i think respondent is incorrect with respect to the time are there a variety of ways in which that could have been avoided at bottom i think this is a case about the rule of law respondent had a variety of options both at the time of the initial proceeding and subsequently to challenge his removal order congress reasonably determined that he couldn't take the law into his own hands thank you thank you couns