trying to repeating everything in my brief and i don't have a whole lot to add but there are some points that i want to stress and actually the more that i was thinking about this case in preparation for today the more i thought that i should have probably stressed in my briefing the importance of the appeal waiver and the right to counsel there was no nothing in the in the record in this case that indicates that there was a valid waiver of the right to counsel  as you know from reading the briefs the facts are pretty much not disputed other than some felony convictions and mr boim tales past but he was a lawful permanent resident since age five he could he came to this country at age five and he was a migrant labor with his family he ended up graduating high school in michigan he was on the football team he went to the military he tried his best to assimilate into american culture and that of deserving the military he was given and other than honorable discharge and that pushed him into a depressive state and he started drinking a lap and that's the the the circumstances in which he began committing these offenses which i consider pretty petty offenses but with the changes in them a great loss for many of these are not considered aggravated felonies he does not have any criminal history involving you know drug dealing a lot of conduct that we often see in these thirteen twenty six cases where people aggravated felons so what happened with mr boim tale is he racks up you know this record and it's one of his went to a fact one week after he was sentenced because this is so old it's it's unclear from the a file exactly when he pleaded guilty in that case but i think it's on the spirit that it was before the enactment of that law right well it's like i said it's unclear from the record in the case when he entered the plea but you would be correct there any doubt that it was after an act went of the ira and and there is there's an n c i c that reflects that he was convicted on march twenty fifth ninety seven ok and that's that's the assumption that i'm working for several days ok so my question is given in the the the hypothesis of your case as i understand it in essence is that he thought at the time he pled guilty that he could have relied upon potential availability through twelve  right right i don't know if he knew anything about it frankly when he did that that's that's the hypothesis that's partly the legal fiction of st cyr right right but this is after it's answer question i agree if our issue is moot if he was actually if he entered his plea after the enactment even if it was before the effective date well i know that's where i would disagree and my argument is that it was that's well ok that's what i'm trying to focus on because if if it's on the books where's the rely if it's known the congress is going to hasn't acted this law that is going to take effect and will apply retroactively to earlier convictions how does it how do we get the st cyr alliance in that case valan my argument is that  advice do you think u s authorities were required to give him back in the eighteen eighty eight same as advice is i think people should get when they're facing serious deprivations and including deportation  sorry can you repeat that your honor well it at the time he was being removed to twelve c had been repealed and the agency was consistently taking the approach that that repeal would apply to folks who entered their guilty pleas earlier in reliance either fictional or actual upon the availability of twelve c st cyr had not been decided  whether all three prongs must be met for some of the prevail in a collateral challenge but i think the most important one you know from the one that i want to highlight is the third the second prong and that's that the deportation proceeding in this case government isn't going to pay for one if you can't afford it you certainly could bring one so that can't be sort of a denial of counsel and in that particular case your on of the government's belief is that the defendant fails to satisfy any of the three somehow anything was fundamentally unfair he was at the ministry of hearing the defendant waived the appeal rights we know that from the record of the order of deportation and not been advised that this court has ruled on several occasions that it is no way or due process here for the court to fail to advise him of his right to appeal a discretionary relief and so as a result it really is of no instance here what the defendant argues in his brief is that the there was some unnamed immigration agent that told him look at your chances of appeal are a really poor but again the  telling him he didn't have that right so it certainly couldn't get over the fundamental unfairness can show that there was any due process right that was violated and the defendants failed to show how he would have been likely to prevail and attain this to twelve c relief doesn't really work under the factors and finally because he's already now it legally in the country under the second soprano reyes case he really doesn't have the option to now contest it even if it was sent back for remains karen believes that this briefly i had understood the statute only it's eight u s c twelve thirty one eighty five to you know us and say well the immigration removal order cannot be revisited for purposes of whether he's removed if was because he entered reentered illegally correct i understand that but i understood the exception in the very i really don't have much to add other than what's in my briefs and again as i stated when i started i do think in the context of a collateral challenge to a criminal prosecution this is evaluated different than if we were you know revisiting the original removal hearing i do think that the distinctions between the facts in this case where you have somebody who doesn't have counsel and i believe the hearing was actually done telephonically you know again the record is so old and i tried to get a report transcription of the of the hearing and the court doesn't even exist anymore with it what took place is like in brandenburg florida so it's very difficult to piece together the facts but i do think that it's an important distinction between zambrano reyes and the rock x espinosa case that those defendants did have counsel and you know in some brown arias case he actually went through a large part of the appeal and then didn't go any further for whatever reason but i do think that even though you know it's a civil through criminal prosecutions of the possibility of deportation so i don't have anything further on rest of my prison after i just ask you when one of the thing briefly here drake just says is is really whether this whole issue is properly preserved what we've got is an affirmative defense right there thirteen twenty suppressed that present a jury issue but whether the alien exhausted administrative suitable for jury decision by it's an affirmative defense to a criminal statute criminal charge that's correct