felony for immigration purposes has proved to be anything but there's been a lot of case law and as you see there's been a lot of divergent opinions that have developed both within the federal courts of appeals and the board of immigration of fuel and what's interesting about the question is this idea which is a rocket that the same term aggravated felony should be given a different definition you know context and the sentencing guidelines versus the immigration however is the court specifically talks about board of immigration appeals precedent and how that precedent differs from what the decision is my garden we do and what the court this court says there is that in a different context and that the board of immigration appeals has different policy goals and concerns than then federal courts have in sentencing and what is that different policy concern but what the board is primarily concerned with and what is articulated in great detail in cases like enrique v and in real g is that your national uniformity in application of immigration laws is critical it's critical because we don't want so it would be situated non citizens to be subject to vastly different immigration consequences they similar based solely on vagaries and state law removal proceeding before the government is allowed to use this removal for speeding as an element of a prior removal is that element of a thirteen twenty six prosecution before the prosecution can use this back to remove all the offense counsel defendant were allowed the court is allowed to go back and say well was this removal fundamentally fair and what president indicates is that if we can establish two things one that there's a defect in the prior proceeding to that we could still prejudice in other words was a voluntary departure under twelve for nine twelve twenty nine ca and that is but that's not mandatory as the attorney general may as you know exactly when we get into multiple levels of speculation here well the it prejudice comes out of a may and discretionary decision well that what would i have to show is it's plausible that there could have been a different outcome so we cannot go back you know with this immigration judge would have done all we can do is say well the first exercised the discretion that was vested in that person and said you're out of here i would disagree there was no exercise of discretion by the immigration judge in this matter the idea of all and there was some confusion and a lot this time i would i would submit to the court traditionally treated voluntary departures had been on the boat for a long time and it seems to me that this is the bread and butter of stuff that they dealt with and basically every case you're right now what do we do with you you're exactly right judge it has and that's why i'm thinking is  why isn't it appropriate to say end of the circumstances if you look at the regularity of proceedings which may or may not be a smart idea that here we've got a case where the immigration judge just decided this was inappropriate well that decision was never made your honor and to get back to your point and i'm sure that it wasn't made maybe it was just made implicitly but that would be a stretch right if you review the excerpts that record which has the transcript the summarized transcript of what occurred that inference that immigration judge trying to do with a bunch of rhetorical questions but it's just seems to me from the experience that i have of all of the stuff that an inference whether it's fair or not is that in this case he just went right through that instead of instead of mumbling a lot of magic words i have the special recent authority from this court of the government should be afforded an opportunity to show that we cannot establish pressed prejudice that was never brought up in a district court level there is never any factual finding from the district court on the issue of prejudice that as a score to do after it determines the legal question if it determines that in their parents staver is the reverse and remand this for a hearing on the issue of prejudice where we would and the government would come forward of evidence to show that it would have been flawed but important point here and one thing about fast track voluntary departure is that that we like as the fence far as that what the case law says is that the discretion can be exercised in a manner that nothing to do with non citizens because this was a tool to let immigration judges clear their dockets that allows the judge to get this position not knowing what goes on day in and day out in these isn't that pretty much required that we have some indication on the record even if it's a truncated reference that there be some indication coming up directly from an appeal from the immigration board but we add the extra layer that this is really a collateral attack any thirteen twenty six case and i think the concept of prejudice faced another view and that's the other one was asked last the defense counsel and that is  that issue because the standard is plausible grounds and there is case law ubaldo figaro a case being most recent that indicate that if that issue has not been properly develop below then they should be remanded for that purpose  finding of the plausibility of relief from that and the unlikely that the defendant would have been allowed to see that really should be remanded for that limited purpose i'm looking at the findings and recommendations dated december tenth two thousand and two he entered the united states near nogales sometimes the night that sometime in one thousand nine hundred four without inspection and admission into the united states then in the chronological sequence it seems that he was convicted of coke cocaine possession in april twenty five two thousand shortly after entry of this conviction he appeared before an immigration judge for move a hearing on may eighth two thousand and two at the hearing he admitted he could be removed her both his criminal conviction and his entry without inspection the quote an argument based upon policy of the immigration authorities of the guard to convicted drug felons in relation to deportation removal back to be frank it is speculation as to why the court found it is and in eligible the immigration court found him in centered on the fact that the court determined this was an aggravated felony now that whether it is in the immigration context is a matter in flux and this court the court entered decision saying that it would not be considered an aggravated felony but then at the time of my client's removal for precedent was definitive polluted clear that it would not be and he would have a field to that board if he had been able if he did not wait his right campus laid out the criteria for the judges the judge exercise discretion for fastrack voluntary departures and there are the courts that the most important factor is the defendant's immigration history in that case and i well samples the individual been granted not one two but five voluntary departures and the immigration judge in that case said enough is enough you aren't getting the message we're going to remove you but you know we're going to give you the legal operated removal the real removal this time because he said clearly you know five is a five time losers and not my client is immigration history is clear has never been granted a voluntary departure this is the first removal proceeding and i would also note the district court in this case pages and pages of violent heinous criminal acts that is not my client we're supplying right now my client has been removed as of march twenty eighth due to the heat discharge sentence on march twenty eighth of this year and he has been removed back to mexico does that mean anything in connection with what we could or should do and now as it will be difficult for me to get him back or that's our premiums but it doesn't how do you get him back for remained you have to apply for special parole in the united states for the hearing you do  how long will that take it takes a while in the process of i just i've been trying to do that in another matter and i basically had to get up and have the guys that decision taken in mexico the practicalities are difficult but that's my problem not the courts and i mean you're still in contact with your client i can get ahold of enough i need to ask you maybe in san diego who knows hopefully not you for this court and i hope you'll take back to your supervisors in your respective areas that this is one of the best arguments candid and direct six think i really appreciate both both of you know what you think that back because we appreciate good arguments and candid arguments i think we all get into our so i thank you jeff fischel united states versus jose trinidad lo