an empty chair judge on avoidably absent this morning he will be listening to the tapes of the oral argument so there is a third judge here and he just not asking questions this morning so we will ask questions for years after his deportation he could return with the attorney general's permission now how do we know he was told at the flea collar please or something like they spend but we don't know who they doesn't also say when they deported me so i take that in conjunction with they said that it was either the person who deported him or even the immigration everything that was available to support the defense that's not the case here and that's not really the issue here the issue is what constitutes a free and just reason and what mr mendoza did is not only tell magistrate judge but later on he mentioned to the to the district court through his new lawyer there that what we want to rely on it's just it's misinformation in the form as you can return after five  so that we can have testimony from mr mendoza for example who who told us so we can just explore a little bit more let's say one of the differences between your case and  form to catch up to the statute there's no question that i asked as it then existed took too long to get that form and then did so the farm the form that you say your papers you're willing to stipulate that this was the form so i think you've taken care of purposes of this case not just for purposes of argument certainly for the purpose of this case the government is willing to assume that it's the same form and the reason why is because this court has already held as a matter of law that that form is insufficient to carry the defendant's burden to show but i also would disagree about the well wait a minute ok this is that i found that when i was in the quarter i was just told to stay out five years and come back and they didn't tell me that i have laid and tell me i had to well we all motions on his motion to with hearings on his motion to withdraw his guilty plea december ninth two thousand and two january sixth two thousand and three and january twenty first two thousand and three three different opportunities the district court gave him to clarify who they were and to set forth an argument and bring evidence to the district court the defendant did not do that now remember the last year and this court in bradner held that the defendant had to come forward with evidence of defendant had external advice that he was given by parties who were not agents of the government but the advice of those parties made his reliance on the misrepresentation by the gun dealer reliable in this case we have no evidence at all the burden is on the defendant it's night for this court to infer what the evidence might have shown is for the defendant to come forward with evidence of an unequivocal misrepresentation on the part of the government and reasonable reliance on that misrepresentation the defendant fails on both of those counts and something else to keep in mind here the defendant and this is in the government's brief when he was arrested he admitted that he had entered the united states illegally  prior to being apprehended in this case and if the defendants really were relying on any misrepresentations from the government that he was allowed to come back after five years he would come to a port of entry that i've waited my five years and now i'm not legally trained but maybe he thought i'll be punished for illegal immigration less because of this i mean really has come across the border illegally but the reason he's been punished so testimony documents affidavits whatever he could come forward with to shuttle this is what happened he had numerous opportunities to do so and he didn't and the defendant not only had the burden to show that for the fans he had the bur originally sentenced he found that twenty to fifty five petition he never raised his claim in this petition he waited until almost another full year later in approximately june of two thousand and two to mention this claim for the first time and that was case of united states versus mendoza is now submitted for decision the next case on the calendar is united states versus and i'm not sure i'm pronouncing it right better