plea with the government on that case and we have been contesting the legality of one element of that crime the prior deportation that occurred in one nine hundred ninety seven where which is the basis of the appeal today and as i've reviewed all the materials in this case the briefs and all of the discovery i would boil down the main issues for the court that i believe are relevant are the false claim of u s citizenship that would if wasn't charged with that crime he just made the statements right he wasn't charged in criminal court with that crime whether i believe it was on the r c although i'm not quite sure actually one how does that bear on its eligibility for relief from remove all at that time and i think any one of the center piece cases sharda on that point doesn't matter whether he was charged with a crime on that as opposed to being just charged by the immigration service no i think if he's in the immigration court a false claim of citizenship can i not accuse bar him from the united states permanently however there are factual defenses to that there's one defenses a quick withdrawal of your false claim that the united states editions in this case we didn't argue it but we could have argued it even if he had said that you know he quickly with through that statement but that was not our defense in this case our defense is that he didn't say that he was with somebody else at the port of entry with another young man that he'd just been released from prison that that morning in the court and they were walking back over first so how do we get around the district judges finding that the district judge didn't believe your client and i mean why don't we have to give some to friends to that for the district court was the body that viewed mr acosta he wasn't even there that's one thing and i don't think i think the whole case should remembered back to the immigration court and also fairness to mr costin i don't think the district court eight years or seven or eight years later had any right to make the credibility findings or the factual findings the other main point to that is that there were no factual findings fairly me in that court in the immigration court the record was never developed the immigration judge is required to fairly review the record and the record was not brought to the ideas attention the immigration judges attention there was a video a sworn oath by my client where he stated i never made a false claim of u s citizenship he said i did enter the country illegally i tried to be admitted that he indicted insult on that but he said in this one you had a hearing in the district court on your motion to dismiss and this gentleman testified he provided declarations and generations in which he made the assertions that you now recount here in front of us that he had changed is is not certain and the district court in making its credibility finding was not looking to decide whether he was credible in front of the  a but whether or not he was credible in the united states district court and if he says he's a liar right here in front of me in this district court and i don't believe and i believe that the truth is that he asserted the truth when he asserted under oath before the i j a that he was a us citizen isn't that the end of this case no i don't think it is right because i really think the case needs to be even and it remain it to the party where this occurred so that the record could be developed because the district court is supposed to review the record that doesn't really exist in the immigration court because the record was never developed by i j or the government and there is no no onus on under the respondent mr costin to create your own record but if you assume that the district court is supposed to make these credibility findings years later you know i'm not i'm a i'm expecting the district court committee credibility finding on the affidavit that was presented to it and yet has to decide do i believe this affidavit or not and the district judge says i don't and i don't because this guy's been convicted of a couple crimes including one of on another occasion of making a false claim of being the u s citizen am i right he did say that and the district judge has what two convictions two convictions that go to his credibility standards to be used in making credibility assessments first of all the person is supposed to be put on notice mr acosta wasn't put on notice or let that go at this point that the judge is supposed to have cogent reasons for why he doesn't believe the the judge says the defendant claims that at some point in time in an identified ins agent told him no matter what you're going to get deported simply answer what they want to hear in court and get it over with all the district courts as it is the court does not find this allegation to be credible and he doesn't say why he can't i don't under our circuit you can just have your personal speculation giving the basis for denying somebodies credibility in the court of law he then says that he's twenty one years old he's being counseled by an assay agents he never had a lawyer telling him he was being told you're going out of here you have no chance of staying you might as well just get it over with because if you don't you're going to sit in immigration custody and another reason to remain in this is to have an immigration expert come in who would apply and i've heard this routinely that these young people are counseled like this constantly to just give up and get out of custody i did talk to another immigration having it i'm not seeing how he could have qualified here state that he's got an amber crock it troubles me but as i read the discovery last night on page ninety three eighty two of the exit of record in his mother's application for song i think where one person one was responsible at the ins for destroying ninety thousand documents of people who were applying for satis united states we don't know where these documents are that's why i asked the district court to have let me have the immigration experts and find that these documents are easily lost they could have been that me there's another and issue of evidence that i've already pointed out that she did may have made an application for them because these were kids they were all under the age of eighteen how long ago was this and nine hundred eighty eight and at the time renee was twelve years old and his sisters were about five and six or something like that but she indicated on her application as you see in the disk in the exit of records that she had put the united states you can never get into the united states again what about vader's argument about credibility would you respond to that i like to miss major sites a number of issues claiming that an immigration officer stated that he should just do one to go along with the program to be deported i would know if you look at the judge the district court judge and has not previously made a credibility determination that set the record for ninety one the excerpt of record the key issue and i think if you look at the language is number one that he was convicted twice subsequently of making false claims to u s citizenship but also if you look at the the temporal system of temporal sequence in immigration officers any statements that he should just along the program be deported if you look the first time that comes up is that for seventy nine to forty three in a record on january sixth as he's heading into th claims that he was mis misinformed by immigration officers so you're looking at a six month time period from the initial motion which is filed in july to january of two thousand and seven and now a switch in his the also the issue that's clearly has to factor into that is and he notes that specifically we put in our papers you fucking admits to committing perjury or at least that's his allegation in front of the immigration judge and you actually use the term perjury so judge mos is presented with a situation where we have a person is claiming well i perjured myself under oath i switched my story in the operations and i have multiple convictions later of doing the exact thing that i'm claiming i didn't do that and for ninety one he basically analyzes that there's a change in the defendant's story that he was convicted of the exact thing that he's claiming that he didn't do and that he had basically admitted to committing are  superseded but the notice of appeal is not from the judgment you've noticed that the notice of appeal is not from the judgment the notice of p m s from the earlier interim rule and then on top of that the judgment the judgment is still there and what we're doing is we're considering the correctness or erroneous ness of an interim ruling and when we get all done here what do you have a deal with this defendant that somehow confers jurisdiction on the court pursuant to scott and then we don't know what's going to happen to the judge we're not going to reverse the judgment we're going to touch it superseded and rendered nothing wasn't convicted under that indictment convicted under new information right and lame the right to appeal the judgment and here we are in the midst of it now letter on that to look at because i don't want to provide off the cuff analysis i haven't looked at scott a while just to see what the circumstances are that you so i'd be happy to provide the court with the court which is within us i don't know whether scott was literally the notice of appeal within the judgment or not but our jurisdiction is by statute either judgment or some final order some fresh and i'm just unsure whether scott would apply to a case where the judgment was based on than the flat statutory bar if you look at the other claims there's the expert issue i'd like to point out since i'm running out of time on on a quick issue expert was not raised in the initial a deportation was was invalid they bear the burden of proving that they were prejudiced by now that they had judged mosque with and if you look at the records gave the defense approximately eight months to find the information necessary to raise that issue in the fence said f had access to the a fast had access to the people who are involved and i point out that one of their very arguments was that they were somehow duped by an immigration person who never filed any documents so there was nothing on the record for a judgment which if you look at and his in his order that's one of the things you point out there's nothing on the record that shows that there was any visa but again one when they not even get to the visa issue because the false claims for the district challenge and the way they challenge that the just the the immigration judge of advised him of some way of avoiding people are patient but the key to those cases is that it must there must be of a means of avoiding people occasionally raised on the record and there was none because  based on his own statements under oath there was no way he could be a lot of the united states under to twelve a sixty two so the waivers valid which judge muskets also found so our position is that there is no means