detention for some indefinite period of time so that at some point in the future he might be able to pay for his own transportation out of custody and out of the country or get out of custody in the country today for free because the immigration judge didn't explain that the former option voluntary departure was a way to avoid the consequences of a removal order and potentially facilitate readmission in the future and never told mr lopez pacheco how long he would have to remain detained to pursue voluntary departure he wasn't meaningfully advised and he wasn't given a meaningful opportunity to apply for ok so let's i want i want to make sure i've got this down so what should they i j have set the i j a first should have said that voluntary departure is a way to tell is a way to avoid the consequences of a removal order and potentially facilitate your reentry in the future and so instead the i j a simply said voluntary departure is where you or someone on your behalf pays for your ticket out of the country the second thing the i j a should have said is i'm going to continue your case but it's either going to be on this specific date or by law i'm only required to wait for thirty days so that mr lopez pacheco knew that he had a finite window of time in which he'd be remain detained and he could have made a more intelligent decision whether to pursue voluntary departure or not is do you think it's too much to ask of the petitioner and the defendant i guess in this case to d talking about the procedures the judge outlined what was going to happen there would be a later hearing to determine whether he might be granted this relief the judge doesn't have any way necessarily of getting inside the let's just say the petitioners head and  to know well you know this person trying to weigh how much longer will i be in custody versus you know the benefits of getting this relief so i don't know why is it reasonable to put it on the petitioner to say if that's the most material to consideration how long i'm going to remain in custody in order to find out the decision to just inquire of the change are we talking about tomorrow are we talking about six months from now well i think the omission about the time period is just one a mission i think it kind of  prior due process violation which is that the immigration judge also didn't really explain what voluntary departure was and so mr lopez pacheco didn't understand how significant it was for him and it was significant for him because he had a son in the country he was a citizen he had family members who were citizens in this would be a way for him to potentially reunite with those family members lawfully in the future and so he didn't have the basis of knowledge of what this form of relief was to begin with and then the other thing the immigration judge is required to do under this court's case law is  to provide guidance to the alien and how they can their application for relief so in this case that would be a simple advisor to the aliens of here the factor the negative factors here are the positive factors and so mr lopez pacheco didn't have that base of knowledge either so all he knew was he was unrepresented the government attorney was opposed to his request for voluntary departure she would have to remain detained and his history was such that he had hinted he did tell everybody the consequences of being you're saying he should do so in addition you won't have those consequences but something else that he certainly did point out what the what the evils of your be removed that's right that's correct and he did explain what the consequences of removal or in the government's position that is essentially the inference is that voluntary departure was not those consequences but there are two problems with that one is that as an unrepresented alien there's no way for him to know that inference is reasonable and that inference isn't the only logical so for example there are lots of things that are sort of mutually exclusive that can lead to the same results and without being told expressly that voluntary departure is different not only from removal in terms of who pays for the ticket but also in terms of the consequences for you there is no reason for him to know that i'd like to briefly shift to if i may to the prejudice issue and so the question here is whether voluntary departure would be plausible for mr lopez but checco and i think there are two options at this court has available assuming it finds that you process right away should i think the easiest way to resolve the case would be simply to remand it back to the district court because the district court was essentially acting as an i j in this case in performing the balancing of the positive and the negative factors and the district courts analysis focuses exclusively on mr lopez pacheco's criminal history and the district court doesn't say anything about his considerable positive equities which include his son who is a us citizen his sister who is a lawful permanent resident his residence in the us for eight fifteen years in eight and twenty two years old i mean so none of that appears in the court's analysis and so this court has ripped remanded in cases like this were either the district court hasn't performed analysis or it's prejudice analysis is legally flawed so i think that would be one option in terms of prejudice and then the alternative of course would be for this court to address the issue of prejudice on its own and there are usually review the case  convictions for our for assault and he also had two misdemeanors and he spent about three years in custody or as mr lopez but checco admitted we had one felony conviction and one misdemeanor he spent about a year in county jail so he just did the comparison based on those three cases i think certainly think it seems plausible that mr lopez pacheco would have received a grant a voluntary departure you don't think there's anything particularly i don't want to say disqualifying because it's not a categorical matter but i mean  violence convictions are maybe of a slightly different order in terms of the within the realm of violent offenses when we're talking about this form of police i certainly don't want to undersell the gravity of his prior conviction but i think that the fact that he received it two hundred seven he received a suspended sentence so he received three years of probation and as a term of that probation he was given two hundred seventy days in county jail and if you look at the statute in california that's actually  certainly your honor i do think though that the three comparison cases that i pointed to there was an alien who cross participated he had a role in covering up a brutal murder i'm not sure if there's a meaningful just difference between murder and domestic violence the somewhat distant past and then you have the murder one which is interesting but it's a different kind of thing that is he he was not charged with participating in but he had testified on one hand and some other coverage i think because i think that what  for me raises the question you've got quite a recent domestic violence felony in the government is opposing how plausible is it that this side j would have granted voluntary departure it's sort of an odd thing for us sitting up here the third level to decide what's plausible at an immigration hearing but when you kind of look at that you're stolt of it didn't seem like that he was going to go easy on him  other case manado if the alien was also arrested for assault and battery and i understand perhaps there's not that intimate partner implication an assault as opposed to domestic violence but that certainly shows that aliens with violent convictions and perhaps for violent convictions were granted voluntary departure and then of course on the other side of the ledger there were significant countervailing positive factors in mr lopez pacheco's case including his as i mentioned his family his residence his education and his employment in the country so i think those certainly show balance it was plausible and to the extent that there are certain factual questions that the government has raised in its brief that it didn't raise below i think that would be appropriate for this court to then remand so that the district court conduct the possibility analysis with the fuller record good morning and at least the court ok krishnamurthy for the united states with the court's mission i think to start by addressing the judges the adequacy of the judge's explanation of the benefits of voluntary departure this is a little bit hard to get a sense of from the read an excerpt but what's apparent from the that was also submitted to the court is that all the information the judge provided comes more or less a continuous strain in a span of about four or five minutes and i think that's significant in informing what a reasonable person would have understood as well so first the judge expressed the identif and then immediately after that the judge explain what the consequences of removal were that is involved a future pardon mission and potential criminal liability so based on that information as well as the sequencing in the proximity of that information i think a reasonable process i'm surprised that the d h just doesn't have standardized guidelines for i j still took to read it is somewhat surprising arm but i think the general the general rule has been that there are no specific advisories that you have to then the government pipes up and says well we're going to be against this one might think that that would also lead you to think that well i'm sure departures a good thing correct but then on the other hand as your adversaries indicated if he effect because and the judge said i'm going to continue this case and then it means in detention right but i think it is the district court correctly recognized that the mention of the continuance also has to be tethered to the way in which the judge actually used which is that the judge is going to fully consider both this relief and then when he found out he was not to remain and imprisoned for longer to see if he could get it he said well just send me back to them and i don't think there's any question that that was the driving force in his decision right you're there i agree there is a trade off that people his position has to make whether or not they want to continue it proceedings or face removal immediately but the fact that he chose to make that trade off doesn't mean that there are some sort of due process violation and saying that they're getting to us and again i go back to the language that the i j a actually did question it right now no right but he's not represented not familiar with how these things work he's probably i have to believe the conditions of confinement were pretty miserable probably you and i would have wanted to get out the day you know soon as we could if we were there so i don't know that you know that's the question i posed to your opponent as well just put it back to you is it really reasonable to expect someone who's shoes to have the wherewithal to inquire about how long exactly your own are we talking about i don't think that makes this a due process violation like i said i acknowledge that it may have been a better practice in this case to specify exactly when that next date was going to be especially for some of those in custody but i think you know especially given how this this hearing played out willingness to listen to mr lopez to take this request so i think under these circumstances i wouldn't call that a due process violation i just like to peripherally touch on the prejudice issue as the court has recognized the conduct  was you know this filing and that recent is not easy easily overlooked one of the cases that i cited called matter of currency i think spells out how to d i m a would wait sort of domestic violation domestic violence convictions of that nature against the equities sometimes interested or distressed when we have these generic words does that mean ten percent chance fifty percent chance ninety percent chance how much does it take to be plausible the most precise answer i can give the court based on this court you have to look at what the i g says as to whether that i j would grant relief no i don't so this is the first question yes i think it's all the circumstances you know generally for voluntary departure it's a way to exercise of both the positive and the negative you i just wanted to briefly touch on the government suggestion that the i g explained the reason for the continuance which was to provide the full reasons why mr lopez pacheco was eligible for voluntary departure i think the problem with  me reading too much out of that is that i never told mr lopez pacheco what factors are even relevant so simply telling someone i'll give you more time so you can present to me reasons why you apply for this form of relief that i'm not really explaining to you what that relief is it's sort of an empty advise can understand that for part of it but if you wanted them to explain what factors are relevant to you what use are some case or some document that you think they should have followed because that sounds very loosely goosing in terms of how i should