immigration proceedings that occur outside of the actual removal removal proceedings are not claims under thirteen twenty six d and that may be true in cases like those cited in the twenty eight jail letter where the process occurred entirely separate from the removal proceedings both factually and legally for mr maher obeah the u v s the proceedings were an intricate part of his removal proceedings this immigration attorney was hired specifically to defend him against the imminent removal proceedings so it wasn't as if she had represented him years in the past trying to get a status in the first place she was hired because he was a lawful permanent resident he knew he was going to be deported if he didn't get the help of an attorney and she was supposed to make efforts to prevent that deportation our court has held that the only proceeding that matters is the hearing itself the deportation the ruble then i don't understand how his arrangement with the lawyer when he hired the lawyer affects that fairly clear rule well your honor her representation was in the removal proceedings but this court doesn't need to blind itself to what she was doing outside of those hearings itself and in fact the immigration judge your claims are about what she did outside the proceedings not what she did in the proceedings there united is my point your honor is that what she was doing in the proceedings was affected by what she was doing outside of that that's true in all the cases that when laura tourism but they would have had the removal proceeding if they'd had the earlier relief so it's always intertwined right well not in the same factual manner of what was happening here the immigration attorney was it giving her the most credit you can for her strategic decisions what she was doing outside of the removal proceedings themselves was an attempt to prevent the remov order from being entered and she explicitly explains this to the immigration judge as well that's just stinks from and from immigration attorneys who were hired before removal proceedings are even contemplated and are trying to get some kind of st so the factual distinction here is that this particular attorney was hired because of the removal proceedings and not in an effort to get a different status and so the efforts that she was making outside of that the actual hearing in front of the immigration judge was nonetheless related to those proceedings and you can tell that because of what she actually says to the immigration judge at the first hearing and in her declaration as well all of her efforts to get to you these that petition were with the removal proceedings in mind they were intended as a defense to the removal proceedings and so when you connect this to what this court considers india motions and collateral taps are removal orders this is exactly the type of relief that this court considers when determining whether it's plausible that someone would not have been removed you can consider all discretionary relief and this court in fact has considered u v s the possibility of obtaining a you visa in that context and that was in cisneros rodriguez so certainly it i undisputed that this was an outside proceeding but it was intercollegiate connected outside proceeding it's why he was turning question here why was she in effect well in that assuming many we can look at that the superseding why was she an effective it seems to me that the reason that he was unable to get this you visa was the sheriff's determination that he was a victim and the further you terminations that there was a pending drug charge while you are there the ineffectiveness is actually undisputed by the government in the filing of the first you these a petition and those are connected so the initial ineffectiveness was that patently deficient you these a petition she filed that petition never identified and we were looking at the second one which was contemporaneous with the removal proceedings well your honor they both go together because the first one was filed because of the imminent removal proceedings and my argument is that the second attempts to get the second one was affected by her ineffectiveness in getting the first one and you can see that even by what the the sheriff's office says one of the reasons the second law enforcement certification was not signed was because the u to review her actions in the first proceeding which took place before the removed proceeding well the first petition was filed because of the removal proceedings so i understand what you proceedings so factually even the first one is connected and that first one didn't even identify mr merivale as a victim it didn't identify any harm that he suffered it actually had an expired law enforcement certification the petition also had inaccurate information about mr maher vias sentence that he received as a fence and it never alerted us c i s that he was going to be removed as an aggravated felon and so when you look at the reason that that first petition was denied there was the reason that he had his lawful permanent resident status which the immigration attorney knew he was about to lose but there was also all of these other errors in the petition that had nothing to do that had everything to do with immigration attorneys ineffective mess and the secondary problem with that which is why it is actually connected to the removal proceedings is had the immigration attorney pursued an administrative appeal she was welcome to add additional evidence there and what a competent attorney would have done is then taken the removal order and shown the vermont service center actually the a o at that point that mr maher of the i have lost his status as a lawful permanent resident and also shown the harm that he suffered which this immigration attorney never even got that evidence so when you think about the ineffectiveness of this immigration attorney she did not reasonably present his case mr merivale never had all of the relevant facts considered by the immigration authorities who had the authority to grant him this petition turned on the fact that it happened to be the same lawyer who handled the use of proceedings as it was handled ventral removal proceedings i do think that it is significant your honor because she was doing both proceedings as a unified representation so if  had switched lawyers midstream you would be out of luck really well frankly and i think if you'd switch lawyers midstream he may have had an effective attorney and he may have actually obtained this really according well let's put that aside let's just assume there was only one effort petition that was the first one that happened before the proof of removal proceedings were even initiated yes you're saying that if that was a different lawyer from the lawyer who handled the actual removal proceedings than your argument today does not hold well i think that must be true your honor because then factually the emigrate the representation didn't include the removal proceedings and so if this was a separate application like it was in the cases in the twenty eight day if it was completely severed from the removal proceedings perhaps it wouldn't be caught  attorneys then i think it could become as a ball in my mind i had thought about a u v as a petition that had it had been applied for maybe ten years before before removal proceedings were eminent before this individual knew that he was going to be subject to removal i think then it separate if you had a separate attorney ten years prior i'm sorry i'm not really understanding why it matters if the removal proceedings have begun because the reason people want these is so they don't get removed eventually right i mean why why does it matter if it actually started the remov already was a lawful permanent resident so this is i'm not arguing that everyone who ever applies for a lawful status can then raise that in a d motion my point here is when someone is going to lose their lawful status and be deported efforts to obtain lawful status as a result of the loss of that status are cognize appeal and if the motion and that's actually consistent with the framework of thirteen twenty sixty as well as the supreme court's decision in mendoza lopez we're talking about an administrative perceiving the result of which contributed to the removal order and that's exactly the type of order that can be challenged in these collateral attacks mr markey i did not have an opportunity to contest the effectiveness of his immigration attorney in within the administrative proceeding itself and so thirteen hundred sixty allows that to be raised here but not without extra findings that he had satisfy the requirements of just sure of you and exhaustion so if you're thinking about these other applications that occur without any connection to a removal perceiving typically there is an avenue for administrative review and potentially judicial review depending on what type of status you're looking at in this context where the removal proceedings were happening at the same time he never did get that administrative review and that's why in this criminal case he's allowed to raise this collateral attack i'm just confused maybe on the facts i thought the first go with the  petition happened like two years before he even got them to you it happened after his criminal conviction but before the n t i right so it's years before the removal proceedings even began so you're it's just like your ten year earlier of hypo is well know your honor because there were there was an image immigration detainer on him and so we knew that eventually there was going to be a notice to appear and the removal proceedings so it it is not as if  this i think it would strain credibility to argue that the e u visa process was done without any consideration of the removal proceedings it was only done because of the removal proceedings because he already had lawful status he wouldn't have needed a u v s otherwise so you're saying the removal proceedings go all the way back to the immigration detainer not not the notice well i think it factually yes that's that is true and more importantly in this particular case it's because we're challenging the immigration representation and that began from actually the moment of the criminal conviction so today extent that this immigration attorneys representation prejudiced mr murray as the result of mr martinez removal proceedings that all of that is relevant from confuses your position on if it was a different lawyer who handled the first use of application and you know a new lawyer handled the actual removal proceedings your honor i think if the timing was the same with just different attorneys than case those decisions did not turn on how in their removal proceedings were all of the immigrants in this case had entered without inspection and so were subject removal at any point anyway what they instead focused on was the nature of the fifth amendment right to counsel itself which is the right that was placed to the extent that there's any uncertainty about where this line is drawn it seems like in this context in the context of collateral attack it should be focused more narrowly on the context of the proceedings themselves than anything that any when the proceedings start that unless or any other questions on this issue i'd like to spend just a brief moment on the way of appeal issue mr america has also arguing that there is a due process violation because his way of appeal before the immigration judge was invalid but in this case  c r fourteen he was directly asked whether or not he wanted to appeal and he said he did not and then he said that he understood that this meant that he would be removed and his removal order would be final i think that undercuts any claim that he did not understand what it meant to appeal and i also think that makes this case significantly different than the cases in which he was it seems like maybe the two of you were talking about different appeals i've had a little bit of confusion on this it seems like you're talking about an appeal of the removal order and she's talking about which applies in immigration cases like the one that's at issue in this case and they have said that that right serves only only to protect the fundamental fairness of the perceive themselves and one can imagine that if that were and if that line were not drawn there are there any number of decisions that an attorney could help someone cases what those cases have said instead is that you have to be able to present effectively the arguments that you have available to you at the time that you're sitting and so if a tree does something that takes away some of those arguments that is an unfortunate result but that doesn't mean that you have a fifth amendment violation well i mean i guess this does seem like the best case for the best facts it seems to me for making this argument because as your opponent argues here the defendant knew full well as soon as he was convicted basically i mean everyone knew exactly what was going to happen he hired this lawyer for the sole purpose of trying to prevent the eventual thing that occurred right and it was the same lawyer throughout the whole the representation really is all of a piece it's kind of by happenstance i think that i guess is that the h s that has segregated out the you fisa process from you know the rest of the i mean i think it used to be that i trace issue these things right so it's just it's kind of artificial it seems to me you're argument really rests on a pretty artificial or not our official but you know it's a sort of a random thing that us yes has now been created to handle these and so it somehow gets separated from what we think of as the normal circuit case the same attorney did represent the immigrant both in the application of the visa and there will be proceedings but i think those cases are reasonably clear that what you have to have to have the effective assistance of counsel is to be able to make the arguments that are available to you that are on the table at the time that you're receiving and in that regard things that happened before that it's possible that they would put you in a better position or worse position all of those cases involve significantly more egregious errors then i think what's alleged here missing missing deadlines altogether but what's the right that is at stake here is the fifth amendment right to due process and that is narrowly it is more narrowly drawn than what i think mr mayor you would want so once you're in removal proceedings the n t a is issued and your only hope is to go now to this other agency and get the u v so you're saying that i guess as long as you have the same lawyer representing you then everything that happens on the visa side is considered part of the proceedings no you're not actually don't even think that it's about having the same attorney i think for example if there was some deficiency alleged during the removal proceedings for example if the if mr merrett vs claim was that his attorney once or more proceedings had started let's say that that had all occurred after removal proceedings had formally been initiated and everyone knew that that was the only this defendant's only hope of getting any relief there was nothing else that he was going to be eligible for it was the same lawyer so right were removed proceedings are under prejudice argument no my point is that it wasn't deficient because there's nothing differently that she could have done so or that would have made a difference in this case so the argument has been that the fresno county sheriff's office wasn't presented with the facts and mary via wasn't listed as a victim of the petition i'm not sure that's accurate if your fifty for the u v submission does list and is a victim what happened was the fresno county sheriff's office crossed his name out as a victim because stood lawyer completely botched the job of trying to explain to them why he could be deemed a victim of the problem i actually don't think that information is in the record at your eighty four the attorney explained that she sent a letter to the fresno county sheriff's office explain the circumstances of the offense that letter is in the record the other issue is that the fresno county sheriff's office interviewed mr mayor and their enemy familiar with the circumstances of this case having investigated the only one specific deficiency that i can make out is that they were not presented with evidence that he had symptoms continue consistent with p i think it's quite speculative given the information that they already had to suggest that that would change their mind at that point is there any importance for us to the fact that the district court made a factual finding that  well i have three brief points first i will have to get the date for the detainer for you and file it in a twenty eight j i just couldn't find it at this moment second and i think responsive to the government's point that this immigration attorney could not have done anything more this immigration attorney never demonstrated harm that mr murray vs offered it was not contested below and not contested in the government's answer in brief on page twenty that he actually suffers from p t s d as a result of his victimization in this offense this immigration attorney not only did not present that information to us c i s but she never presented it to the sheriff's office and so the assumption that he that the immigration attorney could not have done anything to convince the sheriff's office otherwise is contradicted by the record had she actually demonstrated that he satisfied all of the statutory requirements for a u visa the sheriff's office may well but you have to show that his p t s d was from almost being shot compared to seeing his brother be shot well your honor under the so it was as a result of being present at the scene of the crime even if he was a bystander to an injury that caused the trauma so the i think it's very clear that had this immigration attorney owned up to her mistakes and actually explained to them to the sheriff's office and the vermont service center a different result could have happened and you can actually read between the lines from what the immigration attorney is saying to the immigration judge she says that a different attorney had a filed the first u v s a petition in fact it was her legal assistant and she signed off on it but i think her attempt to distance herself from that petition is the recognition that it was deficient and she never owns to it and puts forth all the information that mr merivale was entitled to have these immigration authorities consider and have all of that information be considered it was uncontested below that he actually does qualify for a victim the only question was about this law enforcement certification and i think the facts show that the sheriff's discretion was affected by the ineffectiveness of immigration attorney to the extent that this court questions that i think reminding for an evidentiary hearing would be appropriate there to be able to access some of the information that the judge did not allow us to access at the first seven chair hearing about the internal considerations that the sheriff's office made and i think as a factual matter the fact that they signed off on the certification the first time is a good indication that they would have done so with the proper information as well and finally the government pointed out that  she the immigration attorney filed a declaration here saying that she laid out the circumstances of the funds in the exact same declaration she acknowledges that she's never she had never filed a petition where someone suffered harm other than physical harm and that she was