through deportation proceedings aware that any classical relief is available any subsequent waiver or withdrawal of a right to appeal is not knowing intelligent i think that's what happened here the immigration judge did not ma administrative remedies for this court to consider the merits of his claim and particularly the merits of his due process deprivation of counsel claim this court only on the merits if we were to get to that i'm having trouble understanding that in the transcripts of the immigration proceedings mr martinez expressed a lot of concern about what happened with his prior conviction he expressed things such as i said i was innocent they told me i was going to go free and i think i think over and over again in his proceeding in a deportation proceeding he was saying that he did not he was under a misapprehension of what was going on and that proceeding that he thought he was going to go three out into the world that he wasn't going to go into immigration  y i think that the immigration judge in east here rushing through even though he did express a desire to have counsel i think this court in a whole line of cases most recently  two thousand and five has emphasized that when someone does want counsel in immigration proceedings it's critically important that immigration judges pay close attention to that is there any dispute about the fact that he was convicted of aggravated assault the think assault with a firearm yes there's no dispute that he he was convicted of that and he pled guilty to that ok so then what getting back to that klinefelter point what plausible basis would he have to resist deportation many what i was mentioning for going back and attempting i don't think that he understood the collateral consequences of pleading guilty to that he does have a fairly tortured he's talking about that meeting guilty in state court ye would that's a done deal isn't it his conviction is not a settled settled matter he's been convicted of aggravated assault there are methods of vacating pleas in state court for very ok but he's not in state court he's in the front of the immigration judge at the time that conviction and saying there was something wrong with that conviction i didn't realise what was going on i didn't realise what was happening i thought i was going to go free and the place to complain about that's in state court correct not in front of the i j a what  mr martinez i think could have done and what an attorney could have done for him on that day is take we need another continuance and i j's do you have discretion to grant continuances do you have discretion to to grant a petition or more time to look into  right he the immigration judge asked him do you want to his journey or do you have an attorney he said not today the immigration judge then went through all the exhibits in this case and said i think you've had enough time we're proceeding continuances how many months i believe it was three month three or four months and he still did not have an attorney he did not have an attorney and been given a list of attorneys names and it had been explained to him in english and spanish right he had not that is not that i that is not correct he actually was not given notice in spanish of the legal services let's see if there was a transcript where it was explained to him in english and spanish he said the list of names was in english and i was trying to think how would you write mr martinez it was not in his native language the district court found that that was a significant procedural due process issue and did make a finding on that so i would submit to this court that anyone like you want to defer to the district co we're not allowed to i don't understand when you make these arguments that depend on our accepting the district judge determination you've been calling them findings but i don't think they are findings of fact are they i  law these were the findings that he was making about the evidence before him i'm just putting that to your honor as this was what the district court said with regard to the legal services list so it would be my argument that any time where he w actually advised that there were free legal services available wasn't time actually accumulated because he didn't know that those legal services existed and i would reserve my remaining time for  filed an appeal in this case and then decides to withdraw it so there's not a case in which he made a waiver of his right to appeal at the immigration hearing and then and then therefore because he was not properly advised of whatever relief was available to him that there was a due pro violation on that ground he was advised of his right to appeal he in fact reserved it there's not a question of a waiver in this case argument did not really match my outline of how i was understanding the logic of the case maybe my fault maybe i didn't understand it but i'd like you to put this into what you think is the prejudiced claim is that there was some requirement of the immigration judge advise him that he had the right to potentially withdraw the snork attention please before the state court and that somehow that may  the upon ask this court to do is to speculate as to what the immigration attorney would have done in the racial integration hearing how the immigration judge would have reacted to that what would happen in a state court proceeding separate from the immigration proceeding what would have happened could speak briefly to the issue of prejudice here an argument raised in mr martinez is great is that it is in fact an open question mr get ready specifically the denial of counsel in immigration proceedings is concerned whether s due process rights to counsel were in fact violated and i think the language in at court in that he says is particularly interesting and important because it does state that it remains and settle in this circuit whether showing a prejudice must be made where the right to counsel has effectively been denied responded in an immigration hearing so it's my contention here that that prejudice need not be shown where such a fundamental right as the right to counsel has been denied and that is in fact what happened to mr martinez he did want an attorney he was not properly advised of the free legal services available to him and i believe that the fact that