expedited removal order was fundamentally unfair it was under any standard of her view the district court erred when it made factual findings that were in kentucky but with the record before it without holding an evidentiary hearing without taking any evidence and without hearing any argument because the percy things were not translated for mr otero oracle as for quired by the statutes governing expedited removals he suffered due process violation in the form of lacking notice and an opportunity to respond to the charges against him in two thousand and nine two thousand and ten can you help me understand what was the intervening sort of conviction that occurred because you're challenging his original removal he was an lp are correct that is correct and two thousand and eight for a domestic violence misdemeanor conviction i believe that was later determined not to be a crime eligible to happened in two thousand and nine and so can you tell me i think it was a conviction for cocaine it was a conviction excuse me or it was a conviction for possession of cocaine with intent to sell under california penal code eleven three fifty one point five would you concede that that would be an aggravated felony and he sustained this conviction in two thousand and nine but this doesn't preclude removal there are very this doesn't preclude relief there are various forms of relief that are still available to aggravated felons including for example kept under the convention against torture there s he says t v says you he says we don't know for a fact that mr of cho would have even been placed into removal see proceedings following that two thousand and nine state conviction and moreover he may have had the ability to withdraw that plead that guilty plea on the basis perhaps of an inadequate advice lost to the immigration consequences with and in fact if assistance of counsel claim it was never adjud you never adjudicated that he was not your honor there's a removal order from two thousand and eight which the government can see that is problematic and then there's a removal order from two thousand and eleven in expedited removal that doesn't allege that ground from of ability and his remov the one that you're challenging here two thousand and eleven was based on the cocaine conviction that was based on his two thousand removal that basically are the basis for was not about o contention is that it did involve an implicate the two thousand and eight invalid removal because but for the two thousand and eight removal proceedings or mr cho a lost his l p r status which he had held for twenty nine years since he was twenty nine days old but for that loss of status he never would have been subject to expedited removal proceedings because the statute governing expedited removal proceedings makes very clear that they are only permissible for individuals who do not have any  united states so when he says he didn't know that his l p r status has been affected when he went over across the border and came back trying to understand what happened there can you fill me in on why he wouldn't know if he'd been convicted of a conviction for cocaine he was never removed on the basis of his conviction for cocaine mr cho was ordered for moved in two thousand and eight on the there first of all were no warnings accompanying his removal as there usually are the excerpts of record at page ninety two make clear that he simply was deported and there's no accompanying warnings to the deported eleonora time are associated with what was removed in two thousand we look at excerpts of record at page one fifty four it's the i two thirteen that accompanied his expedited removal in may of two thousand and eleven it's an interview it's the officers notations of their interview with him and that makes what can be deduced from that for is that mr of show us says that he returned to the old time a support of entry on his l p r card was admitted into the country and returned to his home and down in california that on may twenty first of two thousand and eleven he only went down to  girlfriend to get talk and plan to return to downing california where he'd been residing so he wasn't on notice that there was a problem with his immigration status particularly in light of the fact he wasn't at the perceiving where it occurred the two thousand a proceeding w wasn't there we know he'd never been in contact with the attorney that represented him and in fact it seems as though presenting his card had been accepted by immigration and so he did find he was under the impression that his status was valid so he said his card was accepted that's the inference i think that can be drawn from excerpts of record page one fifty four he does explained that he doesn't recall the precise date but that he came to the otay mesa part of entry presented his l p r card that was that's the statute or the regulation that says lawfully admitted for permanent residence means the status of having been lawfully accorded the privilege of residing permanently in the united states as an immigrant in accordance with the immigration laws such status not having changed such status terminates upon entry of a final administrative order of exclusion deportation or remove all my understanding is  judge when it is looked at that regulation and said he was removed end of analysis even if that was the district court's analysis the district court still needs to contend with the fact that the two thousand eleven removal is independently invalid regardless of any argument that there was a domino effect from the two thousand and eight due process violation and judgment as did make factual findings in that regard that are completely inconsistent with the record for example in holding that mr of cho i may not have even needed competent translation services the district court stated that quote even his own signed declaration in this case is in english and mr thomas declaration which appears in excerpts of record page while excerpts of parker page seventy three is twenty nine paragraphs and three pages in the fourth and final page of that declaration is accompanied by that of the spanish language interpreter explaining that the entire declaration was translated from mr osho up before he signed it also there had been a spanish interpreter utilized and needed throughout the case the docket makes clear in the third entry at e r two sixty three that a spanish interpreter was needed and in fact one had been utilized at all really need to decide the issue you are arguing right now about the interpreter let me just ask you a few questions first of all when he was removed in two thousand and eight violation from two thousand and eight but i believe that there are two bases upon which this court should vacate and this case because there is no predicate removal either on the basis the court is describing right now or because of the independent invalidity of the two thousand and eleven removal think i'm nearly out of time i'd like to reserve the court has no further questions thank you good morning may it please the court nicole respects the united states i'd like to begin with judge gold series of questions because i think that there are a bit of for it oversimplified that first the judge told us whether the two thousand all whether we all agreed it was not a valid removal that's that's not true at the time of the removal order of the modified categorical approach that this court had adopted of did it would have deemed that conviction a removable offense it's only later developments in this court's law that rendered that offense no longer a removable offense so it's not true that at the time it was invalid what we do concede is that that removal order does is not sufficient we can't rely solely on that removal order for the purposes of a thirteen twenty six prosecution but with this court said and i go there rios and footnote three is that even where you have a removal order that is invalid that can't get that cannot be the basis for a thirteen twenty six prosecution that doesn't mean that you undo that removal order only that it's bars that prosecution so the only way that that two thousand and eight removal order could have been invalidated would be had mr procedure rather he engaged in the self help of returning and saying that removal order was invalid here is my l p r card alone it cannot be used what else was the basis for the two thousand and eleven not we're not basing our thirteen twenty six prosecution on the two thousand and eight removal order but in on the two thousand and eleven removal order which is independent and this court said in our contact you know where the second removal order is not reinstating the prime removal order it's an independent basis for removal that that and where is it noted that you're based on the two thousand and eleven on the other you're saying right now you're not basing the thirteen twenty otero was removed after a certain date and i i'm actually i apologize i'm not sure at the actual the press the further proceedings in this case but i have fairly confident that because we had litigated this issue and it was clear at the thirteen twenty six d stage that we were relying on that two thousand and eleven order that that that the evidence would have would have supported that so the thirteen twenty sixty hearing have to r d proceeding happened before the conviction and it was clear the government briefed this and said the two thousand eight order was valid at the time however we're not going to rely on that river relying on the two thousand and eleven removal order which cause of the second removal order that doesn't in fact of the validity of the removal order the second removal order didn't mention that he had been had a private prayer all the order prior order of removal the notice that  second removal order simply stated that he peered at the border without valid entry documents and it's true that there's no there's no dispute here that he never tried to correct his supposedly invalid removal in two thousand  never sought to have the proceedings reopened and his p r stunt status reinstate it since he never knew according to we just heard he never knew so how would he know to reopen if you never knew your honor he knew that he was removed after he served his his prison his two year prison term he was walked to the border there's documents that show he knew he was removed he knew he was removed did he know that he no longer was an his declaration he stated he didn't but this court said in the united states versus rayna tapia that any reasonable person would know that deportation from the united states means that he or she is no longer permitted to live here and even if he didn't know that his l p r card validity of that of using expedited removal proceedings it might bear on the possibility finding the second prong the prejudice inquiry where as to whether he is deliberate fraud and i'd be happy to address that but his subjective knowledge about whether he was valid and whether his l p r card is valid does not make the two thousand and eleven expedited removal proceeding per se invalid and i would also note that had here arrived and the immigration officers had treated him as a valid oh p r they would have gone through immigration proceedings in which the immigration judge would have said you are an aggravated felon you are not eligible for relief this court has said although there are those very rare exceptions that appellant counsel noted that by and large an aggravated felony is in eligible for relief so in fact it would have been it would have been the same result even if he had been treated as an l p r and because it's his burden on the thirteen twenty sixty motion to show prejudice there is no prejudice for having treated him as an arriving alien without status for in at least four unpublished cases that the second removal order is independent i think that that although there is not a published opinion it makes good sense there is present there are procedures for reopening and invalid removal order petitioning for review and and that is the way that you can invalidate every move order that has been supposedly wrong and even though the basis for a removal order is no longer your position still valid even though it wouldn't be valid because the basis for the removal that's not my that's not my argument your honor help me understand sure although that the two thousand and eight removal order can't be used as the basis for a thirteen twenty six own proceeding and further because mr cho has to show both a due process violation and prejudice even if this court said that the two thousand and eight removal order tainted the proceeding in mr cannot sit show prejudice because he cannot show in aggravated felony that he would have been eligible for relief as an l p r or as an arriving alien without documentation was the two thousand and eleven expedited removal yes your honor ok so i guess do you agree or disagree that the error in two thousand and eight proceeding would tait or make invalid the two thousand and eleven expedited removal order because he lp ours are not  in just a minute but here he was and he was subject to an expedited removal order and yet the underlying basis for the two thousand and eight you know order connection but that is not enough to say that the order is invalid and even if this court were to find due process violation let's take the due process violation off the table let's say that the court finds there's a due process violation using in calling him a non l p r and removal proceeding he would still need to show that were he treated as an l p r he would have been allowed to remain in the united states and there's just no way that he can make that showing in light of the aggravated felony conviction in addition t is the case that holds that you apply present law retroactively to determine the validity of a removal order i'm sorry i see a lot of time in may i just make this further point thank you i guess is that is the case where this court held that for purposes of a thirteen twenty six prosecution you can you retroactively apply current law to determine whether a removal order that was valid at the time which all parties i think agree that the two thousand and three move order under the law as it stood was fine so when later  developments in the law make that removal order and valid if i get there rios if if it were true that later development in the law automatically wiped out the removal and made the person magically p r again rios would have been it wouldn't have needed to say in footnote three that the invalidity of the first removal order that although it bars prosecution it does not does not affect the finality of that prior proceeding by the aggravated felony conviction and and so even if you say that it's a due process violation to treat him as and arriving alien without talking taishan of the non l p r and he should have been placed in a normal removal proceeding with in front of an  when we're talking about the expedited removal so we argued that in part i think that that was not plausible that he would have been granted relief in the expedited removal proceeding because he had attempted to enter with fraud and in response to that and his declaration and defense counsel argued well he didn't know that he's his own p r card was invalid so that that argument only goes to sort of his subjective understanding but i don't think that there's any case that holds that an l p r status  says that removal should not have happened if the if the modified how to go approach happens again is amended again and a prior removal order is called into question there is no case no statute no regulation that provides for the reinstatement of l p r status without some action by the the alien and here or there with no action whatsoever except for the self help of crossing the border and saying i am here i have an l p r card despite the fact that you previously walked me across the border and told me not to come back here and that is not enough under any any statute or regulation to allow the person to come back in the country as an l p r somebody else have any questions i'm sorry because i'm confused in terms of what what your position what the government's position is here this morning so let me just sort of walked you through this step by step my understanding is government's view that the entry of the order stripped mr a true of his l p r status whether or not that order was valid or proper is that correct not quite your honor bec order was valid at the time it was entered ok so i don't believe that's disputed because under the modified categorical protest that applied at the time has come that his conviction was for a domestic violence offense because the the the modified categorical approach at the time was instructed the court to look at the conviction documents and there was no inquiry whether as to whether the statute was indefensible so he never chose not to challenge that because he wasn't there there are proceedings to reopen and in absentia and no just answer my question is he did that really didn't get fully litigated because he wasn't there he did have counsel and the divisibility  cases had not occurred yet so at the time of his removal order under the case law the binding case law from this court he was his conviction qualified and it was a removable offense but could he have  decision judge benito's relied on the two thousand and eleven removal order so the judgment has essentially put aside the two thousand and eight removal order he said united states versus commonsense understanding that that that once just because somebody loses their l p r status doesn't mean and later and later the law changes the l p r status doesn't somehow get reinstated without any proceeding so sort of challenging that removal order here where in we're going to collect a prosecution where that defendant is is entitled to collaterally attack is deportation order and so we're not end up in a proceeding where that the validity of that remov order can be directly attacked we're talking about a collateral attack for the purposes of a subsequent prosecution good ok thank you thank you honor we don't agree that the two thousand and eight removal proceeding was even valid at the time that it occurred for two main reasons one the court the immigration judge there knew based on what he had set a prior proceedings he knew that a deeper inquiry was required before he relied upon that statute of conviction to deprive mr of cho absentia of his l p r status that he had held for twenty nine years further that percy tings or the series of hearings where his attorney attempted to withdraw twice and explain he'd never once communicated with mr of cho and did not follow the proper proceedings to go in absentia to deprive someone of status they've held for nearly three decades in absentia so we don't contend as a preliminary matter that the two thousand  we don't concede as a preliminary matter that the two thousand and eight removal proceeding was even valid at the time that it occurred moreover its reliance on a statute that is now indisputable ie over categorically over he was never on notice that that was necessary his attorney had never communicated with him he was not at that hearing when he was deported removed after his conviction he was removed in two thousand and ten and by that point he had sustained other any warnings without any explanation and he wasn't on notice that he was removed on what basis and that this invalidated his help your card or that he was the you needed to reopen proceedings what we know is that he says he came to the port of entry was admitted his residency in downing resumed his life and so i don't believe he was on any notice that he needed to reopen those proceedings but what we're arguing is not that in fact his status should be restored to him we're just arguing that the due process violations in two thousand and eight and again in two thousand and eleven prevent the government from having a valid predicate removal order to base it's a legal ranch or a prosecution and so we're not asking this court to make a finding or a holding that any time a hearing due process violation occurs in a hearing but a person therefore can never be can never be validly removed from the country there after but here on these specific facts the due process violation in two thousand and eight did directly impact what happened in two thousand and eleven because he wasn't he should never have been subject to those proceedings and even if as the government is claiming as i understand that there was no even assuming a due process violation that invalidates the two thousand and eleven there's no prejudice that he can show at this time he was in fact eligible for relief from both the expedited removal that was issued in two thousand and eleven despite his aggravated felony and in the record at page eighty six is an example of an individual who had been convicted of thirteen twenty four ellie and smuggling offense which is almost always an aggravated felony and had still receive a trial of application but mr of cho also would have had would have been eligible for relief from  order entered even if he had been treated as an l p r at the time in two thousand and eleven he could have had withdrawal of application or the various other forms of relief from removal that aggravated felonies are not a