the defendant's address which is the detention facility in houston approximately just a little less than a week before he was removed but the regulations also require that an alien exhaust all of his possible remedies under the law before that order to the actual produce the actual prejudice in the government's position is the easiest way to resolve this case and without deciding whether he was improperly deprived excuse me or in an actual prejudice he can't win unless he shows actual prejudice he can't in this case he conceded as you admitted all factual allegations he still to this point does not appear to contest and he was removable rights to release voluntary departures off the table because he was denied that as a matter of discretion that doesn't seem to be even a shoe as far as the i j a made a finding that he was not eligible for asylum or withholding and that that  it and even when asked and does think his application may be a little bit more due to but that he disclaimed those statements in his application at the immigration hearing and even on appeal he didn't contest the district the immigration judges finding that and he had it in his burden of establishing that he did this challenge in a one line without any legal support that he'd been convicted of an aggravated felony but never a challenge got factual conclusion an alternative finding that he was ineligible on the and a crucial that this case rests on but there's been nothing even after excuse me what were for the follow on yes your honor it cuts against any claim that he has any sort of fear or any particular social group was never established in the record trouble seeing what was deficient in the process to begin with to say that this was you know agree just lack of due process and you for some reason in your footnote does preserve the issue but it's not clear to me what there is that's a bad process they they keep the judge kept continuing the hearing to let him try to get a lawyer wanted to proceed postpone multiple at least twice postpone light of the clear air on actual prejudice and deprivation judicial review the government just proceeded to appeal those two prongs on your voluntary departure point is the argument that because it was discretionary discretionary relief can never arise to a due process violation under our ramos proteome and numerous other cases so you can't show a due process violation of being deprived of discretionary really because i didn't argument well that is wouldn't have received it as a matter of discussion based on his criminal history and that's consistent with this case it this court's decision does amount to even if being deprived to prop something discretionary is not  court that's definitely what the government argued below that any sort of his claim to relief you didn't really focus a lot on that here we just this is the this was the cleanest way this was the cleanest way and this court can even assume that the why should we if our precedent in ramos pretty clearly says discretionary relief and we have at least five other cases that say discretionary relief is not due process your honor withholding is not discretionary leave it is all know that withholding the voluntary i think we can see that following the court's decision and kudos to roger i was going to address judicial review st and then actual prejudice but i did quickly want to address a factual issue that came up about whether or not mr ramirez received a months after mr ramirez cortinas was deported from the country on august nd that's what you know when it was mailed it does not show when it was mailed your honor there is no certificate of service attached to it i believe the government supplement in the record with that document which indicates they've they've looked for proof that it was mailed i would also point the court to the record at pages two hundred and twenty seven and two hundred and twenty nine when mr ramirez in his notice of appeal listed the address of the court facility and listed a different address for the detention facility where he was detained those were to physically they were there in a compound in houston but they are to physically separate addresses that time period they once not a requirement for certificate of service or anything regular mail notice was sufficient wasn't and its records that is correct your honor and the reason i think that fact is important is because i think it goes directly to the determination of whether he was deprived of judicial review all of this court is really not done a deep dive into one thousand three hundred and twenty six d to following in the thirty two years following the mendoza lopez decision other circuits have had the opportunity to consider cases that have gone up just on the judicial review requirement and have interpreted mendoza lopez to stand for the rule but when where revue is technically the nd circuit and then the government cited a very helpful case for my position lopez united states versus lopez in their briefing written by now just a sort of my you're doing a quite quite extensive  continuing in the end on the point of judicial review the starting point for that analysis is mendoza lopez and i think it's important for the court to remember that even in the nossa lopez he gives her view was technically available  for those respondents but the supreme court nonetheless held they were deprived of judicial review because their waivers of appeal were not knowing and voluntary the government argues that mr ramirez wasn't deprived of judicial review because he could have theoretically filed a petition for review before this court and so i i i want to kind of go down that rabbit hole a little bit to talk about the realistic possibility of him filing a petition for review before this court because assuming hypothetically that that he were as the government suggested it was incumbent upon him to look for a way to to continue his appellate options without even having  notified of the board's decision affirming the order of for move all this was a pro se man detained in a facility and houston so hypothetically he would have had to have access to some kind of law library or internet and figure out the statute governing this court's ability to consider petitions of review perhaps hypothetically he could have stumbled on the existence of eight u s c one thousand two hundred and fifty two if he'd read eight see which strips this court of jurisdiction to consider a petition for review on an order of removal where the underlying ground for removal was removed ability on an aggravated felony he would have thought well that's what the immigration judge told me i was convicted of an aggravated felony and the face of the statute says i can't file a petition for review then he would have had to hypothetically been able to do further research into this court's case law interpret jurisdiction under that statute and he believed the district court is wrong on the merits of the aggravated felony point that the district court researched on its own which now there's nothing complaining about that  would does that cause a problem for you your honor it's my two answers to that my my position on that is that that has been conceded by the government and it's breaking because it's not challenged on a a failure to point under this court's precedent of failing to point to a clear error in the district court's analysis on a particular issue is the equivalent of waiver of that issue so i don't i don't see the work that's before us whether i don't need an aggravated felony a crime of moral turpitude to be bail jumping i don't there are i believe the government could have raised that but didn't does it we're talking here about judicial review does it matter that he could have  sought to reopen actually loses jurisdiction as soon as the person is removed from the country by regulation so there is the i a would not have had the jurisdiction to consider a motion to to reopen but  need to administratively exhaust restarts i once a person enters the country administrative exhaustion is analyzed up to the point the person is physically removed do you want to talk about prejudice or you i'm going to actual prejudice i want to make clear what i believe the fundamental unfairness determination was that the district court correctly made so in this case the district court determined that mr ramirez cortinas was deprived of due process or that fundamental unfairness occurred because he was deprived of the right to seek really i think that is an important nuance in this court's prior case law extensive case law in this area this court has frequently held that there is no right to be advised correctly or otherwise of the right to seek relief this court has held that there is no right to the ultimate relief but this court has never held that there is no right to seek really release which in the district courts words truncated his entire proceeding the three components of discord requires in due process and has recognized repeatedly is that the person get ought to be bad if it was in error it was a legal error it wasn't the process that was that it was not fair it was that the court in the process that's the appropriate process made a legal error that there was a certain technical reason why that relief was not available that not to warding that's not a bad process it's a bad legal determination if it is a bad legal determination in the process but it how is that a violation of due process it is a legal error that deprived him of bit cuts off your right to relief you've been denied due process you're not i believe that goes directly to the key distinguishing fact in this case from every other case that has reached this court in this area of law in every other case the issue has been a complaint about a failure to advise the immigration judge didn't tell me the ice officer didn't tell me had i known i would have been interested  the cases reach the court in this kind of speculative context where there is no evidence in the record that the person expressed any interest in this potential relief but suddenly the tend to years later it sounds like a good idea when they're facing a criminal charge this case is different because this is not a right to advise case mr ramirez was actively seeking relief he had filed a petition he asked for that petition to be heard say there's no discretion there fine let's accept that and go with that one benito's we have fair to say as a showing of prejudice means there's a reasonable likelihood that but for the errors complained of the defendant would not have been  so explain to me why mr ramirez why there's a reasonable likelihood that he would meet this non discretionary standard had there not been an error yes and that would you have to show ye exactly correct but there's a reasonable likelihood here because the district court examining the record looked at a perceiving that occurred with the judge walking onto the bench and saying your statutor ineligible for the forms of relief here seeking that we assume nothing or i'm going to order you deported do you want to appeal my client says yes and he says well then we'll have a he we'll have to have a record for appeal so the reasonable likelihood in the district court's mind is the fact that we don't know what the immigration judge would have decided on the withholding of removal application had he believed he could have considered it it's a very low because is it because he the your client conceded that he wasn't afraid he said i may or may not you have to make there was no good reason to withhold removal your honor his application that he filed which is is in the record is a twenty seven page handwritten documents where honor in that application he raises several grounds for withholding of removal that there is precedent that the district court considered that theoretically could have been granted family members who are union leaders oh landowning cattle farmers in south america these types of withholding claims have been granted by other courts and uphill in the past in this case the judge told my client i'm ordering you remove it and then said it will go mean that you would that's goes to cuts the other way i think you would make the very best for me because you just establish that you're going to appeal this what you believe is an injustice you wouldn't make a halfhearted record i think that assumes a lot from a pro se respondent who is operating in a nd language honor to make that kind of calculation i think what the record shows here is that the outcome of this proceeding the decision to deny was pre determined because the i j a engaged in perth bunkering questioning because he felt he had to create a minimal record because he knew the man was going to appeal the problem is the answers to those questions that take away the reasonable probability in the court what the district court considered and what this court is examining at this juncture is that record and the district court tied his decision on the reasonable likelihood i think to the fact that his conclusion that we don't know that this is a proceeding started on page believe it's four of the transcript of the proceeding the st thing the immigration judge does is walk out and say you are not eligible i'm ordering you to put this court's case law recognizes deportation is a quibble in a person's mind to potentially exile or banishment and so at that juncture where my client is is being told that this hearing doesn't matter there's much dialogue back and forth where during questioning  the client mr ramirez interrupts the immigration judge and says but i don't have my documents you're telling me my applications insufficient but you're telling me that i have to go on and the judge says well it may not be in t and then two pages later the judge says well sir you're right it was insufficient i mean it's almost reeks of this sarcastic that you can read from the judge towards the client and the district court this case was extensively briefed below and in the briefing and the submissions to the court included the entire record and then an argument was heard on the motion to dismiss there's no in front of the board as well made by that that as that is correct there's no dollars in a way that bars it completely from from ever giving really would be unconstitutional there is a test that is applied the district judge applied that test he found that ramirez passed that test based on an extensive record and you may have seen i don't mean interrupt you but you may have said this while i was coughing in front of my allergies but do you agree that the district court appeared to apply the wrong prejudiced and and forty one dollars of the record the district judge found that prejudice occurred because the proceeding truncated mr mears his right to have his claim considered there was a reasonable likelihood that it could have been granted and he would august of the following year when he was eventually deported he was able to appeal his parental rights being terminated in the texas court and i'm going to direct the court's attention to one hundred and forty two so this is a somewhat savvy and if any he speaks english fluently he was able to fill out that application in english they point to the courts the record in one hundred and thirty eight and one hundred and seventy three where he is directly asked about his english speaking skills so and just in case there's any sort of confusion about that point and collateral view in this case i mean this this judge essentially and acted as a quarterback would be renewing de novo what it happened the equitable considerations that the offense counsel cited as if he were the reviewing court dollars plus actual prejudice had been determined this is not a review of the immigration judges sarcasm or or the b i a how carefully it reviewed that would be what the defendant would raise to the circuit and a petition for  and on into most narrow grounds is that there was no actual prejudice this defendant there was no but for any defect even assuming there was a defect in this case that there was no prejudice to the defendant because but for the defect he could not show that he was not going to be deported and there's nothing in the record there's two cases especially encarnacion gomez which is a th circuit case and raised money and just sort of talked about that there must be some sort of basis in the record and  the defense counsel but which is a park case where the actual there was a murder in the family was fleeing from colombia and been established these cattle farmers were a particular social group right there there's nothing in the record from which this court could find actual prejudice it's really what it boils down to this is a very narrow scope a review of the district court and it was mistaken in its its role here and so this court just needs to clarify that this is not a