hundred eight which we would like the courts take a very close look at and might correct that you were not challenging the reinstatement order over which it would appear that we clearly would have jurisdiction but that the the reinstatement of that order grants us another opportunity to attack the proceedings charging very with an aggravated felony for dui thirty period i just attention facility courtroom with seven other mexican nationals after the entire group reportedly way of their rights representation removal hearings were conducted if you read the text severely searing from a non english speaking immigrants point of view you understand the issues in this case you can see the dangers in this type of setting when i read the transcript just this past week and  but what defect do you see in that transcript frankly of from having read such transcripts over the years i thought that the i j was quite methodical he first of all had as was necessary a translator there an interpreter there he asked each question in a modulating fashion often broke up the question so that it could be translated a part of the question  facts that make something a crime of violence and therefore an aggravated felony that you know having way too many t wise has never been held to be aggravated felony it's you know the other factors that are there so he you know he concluded for very day that he was aggravated felon and should therefore immigration proceedings your brief cites frequently throughout the leslie case yes this case is leslie this case isn't even close to lives because  leslie didn't the alien signal were asked that he walked it count i i was not explicit request that we don't have i'm not it's only familiar with the facts of of that proceeding i think there's an issue with i mean if your arguments taken to its logical conclusion couldn't folks just go over the border come back and then repeal rights renewed we believe that his reinstatement order opened up another opportunity another thirty day window for him to attack the underlying proceeding but couldn't then every person with an order against them but you know bounce over the border you know come back and then have a new thirty days we submit that this is a very narrow standard you know only applicable and the most egregious of circumstances and we think that this scenario fits that narrow standard that where it has underlie who are sitting with so fundamentally flawed that he never had a he never got his bite at the apple or say it actually you're saying only under greta circumstances but on the other hand the government may look at this is an egregious circumstance in that only by virtue of his illegal reentries you get another bite at the apple and an untime and that may be true your honor however he could congress intended that i believe congress isn't taught was to give every alien one bite at the apple not two and we argue that verity never even had his bite at the apple because of the and exhaustion requirement in twelve fifty two a to b and so far as i can tell your client did not exhaust remedies through the immigration process through the b idea that structure virtue of their explicit terms only to those cases in which an alien seeks judicial review of a final order of removal now this circuit along with the ninth circuit has held that where an alien does not challenge the final order of removal but rather challenges the underlying actual challenges to removal orders and challenges that arise in the pendant when in saying that the ninth circuit held that a narrow claim of an effective assistance of counsel cannot be construed as seeking judicial review of a final order of removal proceeding altogether and taqiyya fiero the ninth circuit applied saying and found that the immigration judge misstated the law with respect to the term aggravated felony immigration judge and happy a pharaoh failed to adequately inform the alien of his right to appeal and the consequences of waiving that appeal materially and the facts are identical in this case the infirmity is that the removal proceeding include included three major problems first the immigration judge failed to comply with federal regulations governing removal proceedings and that he failed to advise farraday as to the availability of free legal services and also failed to explain the charges in the notice to appear in non technical language the immigration further misstated the status of the law as it existed at the time by saying that do you i conclusively constituted an aggravated felony here did not mistake the laws exist on your honor there was no ninth circuit precedent at the would provide a basis to circumvent a set precedent guiding the judge well it's not that be the role of a judge it's not the judge's job obviously to act as counsel on that circumstance but by saying that dui conclusively constituted an aggravated felony at the time was incorrect and there was a precedent but there was no ninth circuit precedent saying as much and for all we know had very day you know gotten the opportunity to appeal or have been prior question but i know should reproduce that excellent if it covered both third circuit and one circuit law separately which which circuits law should or should we be following well we urge the court to follow the ninth circuit may have changed the procedure but as the law stands now that has not been overruled either by the ninth circuit or by the supreme court of the united states as far as we're concerned to still got law and light of the  thirteen years ago however let me begin by just assuring the court of the underlying merits here there is no constitutional defects in a stablish in the one thousand nine hundred removal proceedings the argument that the you exhaustion and it also didn't involve the exhaustion provision the one thing i would stress to this court is that the argument that the court can review constitutional claims and questions of law under this we would say that this does not raise suspension class concerns because of the opportunities that there war in this case to seek administrative and just to review so we don't think that st cyr is relevant in this context because  i mean i don't think there's a sort of articulation of harm in the regulations that describe that requires the immigration judge to in detail as as well as opposing counsel suggest to go into scriptures question is there a duty to describe more about the offense other than its title where its designation which here was driving under the influence of in prosecuting liquors modified by too many convictions will work i don't believe so your honor what is the what does the regulation specifically say with respect to  language now the immigration judge did ask the petitioner and the other president whether they will actually i'm sorry he asked individually the petitioner whether he understood the nature of appendix seventy two through seventy four there he specifically reads through the notice to appear as the regulation requires so he didn't meet that requirement and he did ask the petitioner whether he understood what was going on around  lucas camacho lopez we believe is distinguishable on several regards so commercial it has to answer a question did apply the account retroactively but this court has to issue the supreme court has held that a new judicial precedent decision applies specifically only to cases that are open on direct review they'd been deported and at that point you have a new decision issued several years later and if under the rule that the supreme court is set out he would apply that  applies here one of the three day time limit start in this case was issued so it would be in october of one thousand and eight now let me just point out in case so so we we think that's the proper position proper position because the judicial review statute the thirty clear however even if culture cocoa pitches relevant under coke of it the position of would not work because under coke of it what the third circuit said in those unique circumstances was that that there now debbie otto if this is to demonstrate would have would have happened just to show had actually gone into it he had actually had another opportunity to go into district court the same see it was decided in two thousand and one the record indicates that he came back in right away after his two thousand and reinstatement but he never he never tried to go into district court there's a letter in the administrative record that indicates one of the letters that was filed that indicates he came right back in it's docket entry number six letter number two it says quote came right back to the united states after he was deported funky two thousand reins of of this sort of finality rule is that there's not going to be an incentive to come back into the country and we don't want to create an incentive to say ok well just illegally enter the country and then you can take advantage of the state seems it seems to me that the rules are asking for and could have some applicability in the future potential immigration developments is that nothing happens no matter where we are till you try to remove us again and reinstate initial remove or and then we get thirty more days on the clock right seat but that's water what's wrong with that that's directly contrary to what congress systems trying to do in these cases now congress isn't acted thirteen twenty six d in the criminal context sanction such collateral tax but that's clearly different because you're you're what you're doing in the criminal context is you're you're attaching and you criminal penalty so a criminal prosecution is something different right what congress has done in the civil context this is not to the reinstatement statute which itself we haven't talked about it but i mean the reinstatement statute itself says that there is no review of the underlying order of congo which is clearly trying to to not allow for collateral tax in the civil context as doing the criminal context so to have another thirty days every time there's a reinstatement would allow for there to be multiple attacks every time the law shifts or every time there's an allegation of new constitutional  defect in the original proceedings there's clearly a distinction here the congress is making so we don't we don't think that mendoza lopez lot of cases were thirteen twenty sixty two congress intended to incorporate into the civil cont no but he's he's been ordered deported from the country subject to the last reinstatement order so although he's not in custody we believe he is still lives here as the government points out judges are required to state the charges and then explain them and in this case all that was done was stating that mr verity was an aggravated felony he did not explain in non technical language there is no non technical language on the record as far as describing what an aggravated felony is or what if there's there's no case law by the way that explains what that means is not practical language yes not that i know of your honor but merely stating that charge cannot possibly prostitute non t an explanation of the charge and nontoxic a language that's not merely the surface that's a superficial description of what what was wrong you know that he was aggravated fall that was not describe or explain to him in any way there was no explanation but there was a division of authority among the circuits at the time of various removal and the immigration judges comment indicated that the law at the time was settled in clear and this is