judge the statute twenty eight u s c section four fifty five says that any judge or magistrate of the united states shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned and that is supported by the united states versus lyra own sweater which happens to be a case that's very similar to ours in that in can did in fact have a conflict of interest even though we are claiming that he did have a conflict of interest the real issue was whether it might reasonably  questioned to a reasonably well informed observer and i make the analogy judge of the architect who is involved in  in signing off on the plans for a bridge and the bridge collapses and then twelve years later is on the inquiry board for the building collapse or for the bridge collapse and i think that that denying essentially the appellate we know how many subordinates that district council well the exact number i'm not familiar with judge but i do know that in this particular case there was the there were two subordinates one was to be assistant counsel assistant chief coun and the direct appeal now i will memorize make myself clear i was just curious is there really know anything about how many persons he supervis i mean we know for example what the u s attorney's office here has two hundred lawyers something like that ok so u s attorney would have to hundreds or you know principal subordinates people actually prosecutions and i'm just curious if we know anything about the corresponding number of prosecutors that the district council but i don't believe that it's highest the actual number of u s attorneys but i don't know the exact number i know it's less than fifty because i deal with them all the time i seem to know them personally but i don't know the exact number judge i do know that the office has changed since judge judy  the chief counsel and i know the the assistant counsel who handled the second prong of the motion to reopen and she remember that case very well in fact she re have read the pleadings and it was an odd it was an odd decision on the second motion to reopen because on the first motion to reopen they struck the motion because apparently  the council did not present the case to former counsel officially as required under the law but in the first go round console makes it quite clear to the board that he had in fact miscalculated the time to file he had he had included in his calculation how there was a day missing because of because of  holidays that was sandwiched in between there so councils admitted that he had miscalculated the thirty day time rule and filed it on the thirty first date the board of the board of immigration appeals held them strictly accountable and de mint dismissed the the direct appeal to the board of immigration appeals and remain on on the motion to reopen the motion to reopen they the attorneys claimed that the that it was pretty self evident that it was a ineffective assistance of counsel that counsel had admitted that he had in fact blown the deadline so to speak and that that the vet the board should take notice of that the response was well no you didn't strictly comply with the with the requirements and therefore you didn't give you didn't serve notice on the attorney and get his response as to what the allegation of  ineffective assistance of counsel was so on the second motion to reopen on the subsequent motion to reopen they file he did get an affidavit and he did submit the a r d c investigation that was opened against the prior attorney but this time the attorney failed to pay the fee and then that was so merrily dismissed as well and what what is that while she was drafting her response to the second motion b i ruled without a response necessary so in both in all three of those instances and in the second ok and you know it just goes it just goes to the issue of whether a person who has that high of a responsibility in the chain of a denial of an individual's rights and and and certainly i'm not all the reason that's important to me is it's given the length of time it's being you know and given the volume that they have for her to remember this case  so in in that regard i didn't want to sandbag somebody that i go up against all the time and i have the highest respect for misconduct but it what it went to show is that since we're talking about might be an appearance is that it's not inconceivable that somebody like a judge jury again would remember this case it doesn't matter if it's entirely distinct proceeding  example there's nothing improper with a district judge hearing a new criminal charge in a case involving a defendant who has appeared before him for i but we're not even if the prior criminal conviction is going to be used to enhance any subsequent sentence i think there's no appearance of impropriety in that so judge her you can see name on these documents as the district council creates no appearance of impropriety because it's an entirely that i beg to disagree judge when i file a thirteen twenty six d motion claiming that the proceedings below were unconstitutional based on ineffective assistance of counsel you're trying to collaterally attack the removal order based on  that allows a litigant to attack the underlying order of deportation and in this case the underlying order of the partition was signed up by judge do you take it now whether he remembers it whether it's too old those call to the facts those go to the facts of the matter those go through was there an actual conflict if if if what lara owns ueda is holding is accurate then the hatch or matter has no bearing anymore then actually the rule for fifty five eight where it says might reasonably pression by a reasonably well  that's you that's hard to get around because we're not talking about the actual conflict we're talking about appearances by someone who says by the way how could in fact my client he says how could the man who signed overstates the motion to dismiss issue it's not the efficacy of the deportation order it's whether there was not to be for judicial review to correct impairments in that order and there was plenty of opportunity for judicial review so you're barred from collaterally attacking it is the second issue but you know that they're intertwined in that respect you can't we're not talking about the general efficacy or propriety or correctness of the removal order we're only asking whether there was an opportunity to challenge it which there was and it wasn't shot just sikes i mean you don't get i thought i'm likely going up i'm not picking up i guess i'm not picking up the distinction you're making i'm deprived of an opportunity for judicial review up the food chain there's nothing to support that here well so it does not involve an evaluation by judge jury a can of what happened in the removal hearing it only involve an evaluation of whether you had an opportunity to challenge it which which your client did so that's the end of the thirteen twenty sixty inquiry so is your honor saying that the inquiry and end of the question we don't go any further in you don't dismiss affective assistance no if you hadn't i mean according to my reading of the criteria in the case law to collaterally attack ok well made please the court my name is ga psyches and i represent the united states this court should affirm the defendant's conviction the district court did not air in denying the defendant's motion for recusal there is no appearance of impropriety here or the district the district court judge's name simply in his official capacity as i am asked district council appeared on to shore routine pleadings filed by the service nearly fift the prosecution when he was a u s attorney i think your honor i don't know if that's a policy of the office necessarily my my understanding is that if someone within the office and i supervisory were prosecuted while he was the u s attorney now he becomes a judge and those cases reappear and i think he's i think he has through accused or at least the policy policy of the department of justice should it be the policy of the immigration court which is part of the department of justice again i think it's just now judge  proceeding and it's a distinct criminal proceeding in which the defendant is challenging the assistance of counsel that he received in his underlying immigration proceedings but under four fifty five a there is no appearance of impropriety here where there is no su n that judge jury and in any way and to use defense counsel's words signed off on the underlying of pleadings except his name was on it his name appears on his name was on that incident and that and this is really a but only one criminal proceeding so you're think first of all you don't know whether the believe it and secondly people someone may not have a recollection a conscious recollection of something but could you could have you could have that that involved the grow out of this could grow grow out of cases that were in your office under your supervision even though you probably had nothing to do with it there's no suggestion here that a judge that you don't know whether it's true and second of all you don't you don't necessarily need a conscious recollection to be influenced by something that's happened to your house i heard what you said judge and what i'm trying to say is that there no reason to doubt that i understand your qualifications the qualification that you're making of my following statement but there's no indication there's nothing in the record to indicate the judge jury again has a recollect council office there's nothing in the record to support that this is the first time that any mention of this conversation or any mention of this supervisor's recollection is on appeal but there was  about my point was good for we don't know whether we know there's no evidence one way or the other that allows us to decide whether this earlier probably don't remember nevertheless it's better that you not participate in this related case because the same person where that original deportation has played a  you know as me they're part of the enforcement machinery of the justice department just like the u s attorneys i believe that the circuits precedent and the case law regarding section four fifty five eight provides district judges with adequate guidance on when they should recuse themselves under that statute so you don't think it even if it's the appearance because it hasn't been sufficient evidence to show actual conflict so we're talking about appearance of that's right i was really innocent we talk about right and you can't make it might be better to refuse i mean there's nothing wrong with you saying that to the court correct saying you know we're taking no position on this judge but should this a rise of you know this could arise and it was an issue and we just were aware of that government might take such a position in this case for the government did not we stayed neutral and i go back i want i want to emphasize the language that appears and raise sure when williams the two thousand and ten case on for fifty five a language and in particular what sherman williams talks about is how we should decide how when how a district court judge should decide or any judge should decide whether or not there's an appearance of impropriety and they need to look at it from an objective standpoint from the viewpoint of a reasonable observer and that reasonable observer is not someone who the language from sure when williams is not someone who is hypersensitive or overly paranoid but rather someone who understands the overall context the facts person who was just her counsel when they were moved would give them some concert correct every so but that's not the standard what the actual person is the last yes judge i agree about the defendant in that case would not be a reasonable observer under short one williams the reasonable observer would be someone who want to understand that just reagan had an elevated position within the office that he was overseeing a number of district council who had  our i don't have an exact number my understanding is that it is for example much more substantial the average caseload for a district council than the average caseload for a prosecutor for example in the u s attorney's office and and probably back the general premise is there are plenty of judges who know so well recuse when there's an appearance so when there's a possible appearance of impropriety in the government does not believe that there was such an appearance in this case and so seeing that my time is up on last anyone on the panel has