underlying deportation was obtained in violation of due process and therefore ineligible to be used as an element of the criminal offense second that the court erred by failing to instruct the jury they had to find that lack of official and well it would be an unfair qualified released from prison from prison and then immigration has all their usual practices within the day or two and then he would be deported to mexico is convictions aeration of course the government could not go forward because that's the only deportation in his record and so that it's not like the government could refile to prosecute him for a mis he's served four times over practically agree with you on a motion to dismiss that's probably unlikely the government i'm sorry and it's probably unlikely just practically speaking if we were to group you on the motion to dismiss that the years and surely american legal reason for setting aside the judgment voluntary departure b i a has made it clear that the in order to conform with due process the immigration judge must tell the alien that this relief is available and explain what you have to qualified there's no dispute the excerpt of record fifty to fifty seven is the entire deportation hearing that he wasn't told how you apply what factors you need to show and in fact it appears from have any have the type of activities that normally would cry out even in the higher standard of voluntary departure for being here since he was four years old no prior record with immigration at all no deportations no voluntary returns three united states citizen children rest of his family in the united states schooling in the united states and it appear that the immigration judges like that because he had the criminal conviction a misdemeanor domestic violence that  the court even started i don't know the government's petitions rehearing or whatever that the court still order his immediate release because of the amount of time that is served because even if the court was wrong this is the supreme court instruction on thirteen twenty six now includes a paragraph that there has to be official string when there is evidence and here he appellant is seen crossing into the united states seems it's not been one hundred i think there are two main issues that you've highlighted so far first the one thousand nine hundred seven removal and whether or not the immigration judge did inform the defendant of  the various forms of relief that he might have been entitled to and then of course the code the incentive all issue whether or not the well yeah i think those are well if we if we were to find th equality that's exactly right and the fast track voluntary departure is a way to basically bypass the restrictions that are in that that are under the voluntary departure form of relief but at the end of the day it's still a matter saying it was going to be we can look you know here even if he applied for she wouldn't the not that i know i'm sorry how do we know that she would have been well i think that's what the judge from i've never had a chance to make his best case but she had all the fendant here absolutely incorrect statements of the law and including that that with your conviction record i would not be able to fairly consider voluntary departures in spite of the equities  reinstatement right now i think we don't have any choice but to look at the ninety seven you know that's true that's true but when we look at how prejudiced was he by that reliance i mean what would have happened at what happened at the hearing in the ninety seven when he was in front of the immigration judge advised him of the possibility of applying for fast track voluntary departure and was a reasonable was it reasonably plausible that he would bill for truth was discretionary but it seems to me that he should be able to have the opportunity to apply for it to make his best case for you can get there but i think in this particular case the judge w with and you can explain from reading the transcript that she was faced with someone who wanted to just want to get it done you know he wanted to get out he was in detention he wanted to get added to tension he wanted to get on down that's track  and at that point voluntary departure was not in that paragraph it was within that chapter but not within that paragraph within a matter of months by nine hundred ninety eight immigration judges were required to inform respondents about voluntary departure because the language was changed and again this is an interim cordova to state that they immigration judges have to inform an alien of his or her appar what we had was a missing link in the chain you know we had an absolute agent the best that the government can say well in fact the agent testified that there was continuous surveillance and the best that he could say is he didn't know what the other saw in this case at trial we had every link in the chain there was no evidence to the contrary that the agency for a minute and a half lost sight of the defendant and