good morning your honour's all of you well i would ask that you give me approximately five minutes to cover some matters that are not because of circumstances  first and the one goes that goes to the merits involves what kind of case this is all it has immigration consequences it's not a quote unquote  immigration case as this court recognized in united states versus chin and decided after briefing closed which is reported that suddenly ninety two fifth third eleven fifty one this case is really an inadequate assistance of counsel case with deportation consequences let me ask putting aside for a second whether or not we actually have the ability to review the validity of the state court conviction in this petition for you yes assuming you're right what is the court's do how do we know that your counsel that your client received ineffective assistance of counsel there's been no he the case proceeded to the b i a what is it that you would have us do do exactly what you did in united states versus jan and in united states versus kwan a district court whether or not to grant corum nobis on right on a conviction here you're challenging a state court conviction is and where would you have the evidentiary hearing with respect to ineffective  to there will be able gratian consequence just and that's an admonition which was better than the law required at the time that it was given because big deal wasn't decided until a number of years later no no absolutely not i went no watched work with me for second decided after your case no before and after weight it was there after the plea after the plea and it's not retroactive correct correct ok so at the pi at that time as a matter of constitutional law the court was not required to give any admonition at all that's also correct and but the court gave an admonition that said there may be immigration consequences which was mis advice and which under kuan means that it was unaffected by patea cited kwan with approval and in united states versus china is the supreme court held that the lack of retroactivity of padilla did not apply to kwan how do we know that the how do we know put aside what the court said to your client how do we know that your client received ineffective assistance of counsel not a sect of admonition by the court because exhibit any to my affidavit in the record shows that the court and aside this conviction right and you are asking us reviewing an order of removal from the v i i i to set aside a conviction where no trial court has ever had an evidentiary hearing or found correct tell me to cite me any case in which this court has ever done that united states versus china no united states versus chen was a criminal proceeding in the united states courts against men and and we were dealing inside the federal criminal system here we have a case in iraq comes to us out of the immigration system and so i'm trying to figure out how it is under your view of the world or facts are supposed to be found just because you the we get to dismiss there's no disk no there's no dispute in fact the advice that was given was constitutionally defective because the device that was given merely stated that there might be is supposed to know that there absolutely will be it isn't so much just the stage it's also her lawyer the state judge has a responsibility to fault the law but a lawyer has a responsibility  to know the law and advise the client properly and that didn't happen in kwan and it didn't happen in this case and it didn't happen in chan and that's why we have standing to ask for  well just a second chance but there they were federal convictions and you and the petitioner went back into federal district court in which the conviction had been entered do you know of any case where a conviction has been invalidated within the four corners of an immigration proceeding no so you're asking us to really take the next up that's what gives us any authority to invalidate a state co conviction within the context of an immigration proceeding on appeal from the b i we're not asking you to do anything other than recognize the extraordinary circumstances of this cas write respectfully disagree no to tell me tell me where in in any case you can find any case in which the court of appeals is and original matter after no proceedings in the state court federal co for some reason but i so courts of appeal have recognized the have the original power to grant these read at to state to state courts to any court to any court without regard to the purdie federal statutes we have the we have the decision of the jurisdiction without any proceedings having occurred in a federal district court or in a state court to issue it original writ of corum goby striking out a state court conviction and then to add to it judge last question on a petition for review from the b i a yes but the entire reason for these rigs are when there is no other relief available why can't you go to the state court and seek relief because by the time we do that our client will be permanently deported to mexico and the chances of her attacking the state court conviction from mexico are zero so unless some steps are taken now she facto will be denied any relief whatsoever i've we've used up a lot of time with questions you want to save the rest of it and perhaps will give you another minute or two hundred already you want to keep going well we we're on the central issue so i'll step down and use a few more minutes at the end we'll hear from the on the spo on a spouse or co have to t h s put her into removal proceedings and the immigration if it judging board found that she was removable and ineligible for cancellation of removal and this petition for review mr meir is doesn't challenge the agency's findings that she eligible for cancellation of removal instead she's attempting to collaterally attack her conviction did she make this argument the agency know so we have an exhaustion process and exhaustion argument that the way she would have exhausted it probably would have been that anyone says and tried to get relief in state court i don't think immigration judge afford to have the authority to say that this conviction is not valid so she could raise that argument but they probably would have just said we can't invalidate  conviction can you respond to your so arguments that going to state court would be futile because in the meantime she would be removed couldn't affectively make the state court argument i think it's convenient argument but who's to say if it's cheap first of all she pled guilty in two thousand and four so she's not twelve years to try and invalidate this conviction it's unclear why she hasn't done anything in that time frame but she hasn't been removed  which in essence when was she given notice that this conviction might result in your deportation find it for you real quick because the conviction was in two thousand trying to figure out when in that in that sequence this argument was raised was it raised it wasn't raised in the agency so it's raised for the first time in the petition for review right now do we have jurisdiction in this case over the argument about clearly attacking the u s and i would say it's not exhausted first of all so no it's the only argument in the petition right so if if you're correct should we dismiss the petition or den it i guess dismissed because that is the only argument i mean we make the argument that she's waived all the other arguments she could have made about the remove billion dollars realty for relief i don't there's no other arguments in a petition that somehow the b i a did guess dismissal would be appropriate i'm not totally sure on that but i'm not either which is why i asked you if you had  i don't think i really have anything else it seems like the main point is an alien to simply can't collaterally attack a conviction on petition for review from a removal order or an removal proceeding so if there's any remedy it's in state court that's what you need to be pursuing what do what do you say to the underlying merits of her claim that advice given by the california statute and and the attorney who then adopts it is ineffective assistance well it's  a so it is not retroactive this convict this happened before p d s so pedia wouldn't work require any sort of particular advice there are k two cases in the circuit that talk about affirmative miss advice where it may be an attorney tells him he won't be deported there can still be an ineffective assistance of counsel action if there's affirmative misleading advice but she hasn't claimed any sort of affirmative misleading advice if you look at we don't really have a record of any of this but if you look at the motion to supplement the record her affidavit just says that her attorney didn't notify her that she would be deported she doesn't claim that her attorney said to her you won't be deported and that seems to be the distinction this court makes in quantum chan is that there has to be in both quantity and if i'm correct involved corum nobis proceedings that were directed at something i don't sit there and said i want to set aside the district court said no in a court of appeal said yes he should be set aside right but he did it in the court that had entered the conviction not in not in a different system if you're in today and we were reviewing their criminal proceeding you do agree this would be deficient advice yes residents back at least attackable advice right we do what is the record disclose as to what it vice i mean there isn't a record because there hasn't been a proceeding any place yet but what do we know about the advice that was given to we know what advice the judge gave her because that's where the court gave because that's a document in the record but what do we know about what device or lawyer gave it's in her seat motion to supplement the record dockett entry number twenty five she has a declaration she's trying to get into the record about what the advice was and she says when she put guilty she didn't know that that conviction would subject her to removal i was not made aware that this conviction would result in my removal i don't remember my attorney telling me that a guilty plea made me so this is in a motion to supplement the record  assume we granted that motion for a second what's the government's position about the accuracy of that do you want to chance to contest it your colleague says it's uncontested but that's kind of strange because it's not in the record yet if it weren't a record what would what would the guy who are kind of going down the ground i mean i would probably want to hear from the attorney that she's accusing the here the attorney side of the story but that's i mean that's really the only person that's going to have any insight about this  let me ask about one other matter were so mean that the vice advice was inaccurate because she was almost certainly going to be deported as opposed to possibly may be deported but what tell me about how does two twelve see exactly she didn't apply for it so here it's all hypothetical etc there's exactly she said she didn't apply as i understand she didn't apply for it because she'd been got she'd gotten one time before and you can't apply for disliking time she planned for cancellation of removal which replaced to twelve c and there is a provision in cancellation of removal that says if you've previously been granted to sort of see you can't get cancellation of removal so he had not been granted two twelve c would this would she have been able to apply for cancellation of removal then surely i mean that they didn't really get beyond that bar because these criminal convictions could certainly have made her an eligible but the i j a didn't really reach any of that is this how do i you in contrast to rodriguez vega whether this is the kind of criminal conviction that makes it virtually certain you will be deported rodriguez vego is a drug case and i understand why the why the government is eager to deport people who commit drug crimes is how do we know that this is one word for a choice certainly you will be deported i don't want to see the police so i wouldn't the attorney at the time might not have known say that this is a categorical domestic violence conviction well we're going to talk about this a lot more the next two appeals but with this be considered an aggravated felony for purposes of asylum claims i don't i don't having thought about that i have this is no asylum issue in this case but it but then you get to the next question would be whether or not it would be the original conviction occurred i had any notion that it was a deep portable offense now section two thirty seven and a u s c two thirty seven day makes mistake violence in the automatic lead to portable offense is not the violence it's the domestic nature of it and the fact that it will mystic partner is entitle to trust the other domestic partner but in this case it was two lesbians and who knows what kind of situation of violence or says we treat i know i know he's preach same gender domestic violence exactly the same just as it's different gender to stick with i understand but don't go there i well i'm going well it's not going to help you all right but my point here is that the sentence was twenty six days in jail so this couldn't have been heavy violence and look like you paragraph five of form two one one twenty she signed off and her lawyer did too on this if i am not a citizen of the united states which she is not she is a legal resident i understand that this conviction may have the consequences of deportation exclusion from admission to the united states or denial of naturalization pursuant to the laws of the united states now as i read a wall of kwan gomez which i didn't want to take time to discuss because i thought it was absolutely plain from the other two cases this is miss advice on the law before counsel but the state of the law prior to that was that saying something may be have a deportation result was inadequate assistance of counsel thank you counsel we have your arguments in this case