i think that in reviewing this case it's important to begin with the purpose of the equitable stoppel doctrine the supreme court described the stoppel as an equitable doctrine invoked to avoid injustice in particular cases and we believe that under the facts of this very unique case the government should be as stopped from deporting mr died in the philippines and we think what makes this case particularly egregious and what makes it distinguishable from other equitable stoppel cases the courts have considered in the immigration finding that he did not meet its burden and i want to start just by talking about a related issue which is mr brady's credibility the magistrate judge found that the witnesses testified candidly about the recollection and perception of the events version of the facts and applied the law in fact will stop lots of those facts not to the facts of mr brady so the accounts of mr brady and mr doyle gave were entirely divergent about these conversations they agreed that there were conversations between mr brady and mr you know now i mean i see all the inconsistency and if i had been there maybe i would have done it differently but here i'm not seeing the witnesses i'm not seeing the same thing now is that what you're asking me to do well candidly but beyond that i mean getting more to your question i don't think that her finding even under a clearly erroneous standard was supported by the evidence just because of all the inconsistency and i think that in other many of them and beyond that when we objected to the report a recommendation the district court judge simply adopted that he didn't address those either so i mean you know if the concern is about an explicit credibility fine and i think it might be appropriate in this case right well now how does he get i mean he knows you know he's picking between some sort of inconsistency and he decides to go with what he wants has how does he satisfy half promise well i mean a couple of things i mean the first thing is that you know the question is what are the true facts in this case because we're arguing that he was ignorant of them the true facts in this case is that mr newdow it because of this plea he was going to be put into deportation proceedings and eligible for any kind of relief from deportation could be ordered deported removed from the united states and be eligible under the immigration law to ever come back to the united states as an immigrant but there's also a true fact his lawyer feel and told him don't do it well he told them that he would be subject to deportation and it   and subject to deportation i could go out to four more years and two could save me saying well this is what might happen this is what might happen that you know the fact of whether your department or not doesn't happen till it happens right well i mean i think that was that you listen to the doctor for the cancer diagnosis we're here as your honor pointed out he had a choice he could listen through and experience a public defender who said unequivocally you will be subject to deportation if you take this deal i don't care what anyone else says you will be subject to deportation or a well meaning lay person with no legal training who is speaking to him through an interpreter well before britney spears simon and garfunkel said a man hears what he wants to hear and disregards the rest and that's exactly what this case is about and if you look at the record it we are one thirty one thirty one and you are two hundred two on all one you'll see the evidence of that after the guilty plea from is off from and ran into mr brady in a restaurant and she said how's it going is everything fine and yeah he's fine you know it's fine don't worry about it and mr han asked did you know that he was fine and brady said no i know he's in immigration detention and i know that if you're in immigration detention you're treated well that's what he meant that was this testimony one thirty one thirty one what ms often said is i asked do you think we're doing fine here and mr brady assured me we were doing fine he received the documents that he wanted and everything is a lay person and he was not able to answer questions regarding the subtle distinctions between the four levels of assault in alaska that lawyers answer those questions but mr newdow i had one last opportunity to avoid removal and that was requesting prosecutorial discretion he asked the ins director down here in seattle for discretion they provided all the letters all the community support there was a contrary declaration from his mother in law saying this guy can't be removed sooner office far as i'm concerned and that was  last opportunity to avoid deportation but in answer to your question pleading guilty to assault second degree or be under the auspice system if it's subjective it's a crime of violence and if it's going to be for over a year as a or after so there's some question about the strength of the letters of support but it doesn't really matter because as your honor pointed out you can't get the third element of equable stop on this i cannot possibly show that he was ignorant of the true facts because his public defender told him the truth fact he chose to ignore that fact and that's his right and that's his opportunity but he chose to ignore that go up to the next level you've got to show affirmative misconduct you've got to show a deliberate act and if you're gonna point out there's no motive here there is absolutely no motive in fact  i have no beef with mr brady i have never had a problem with brady previously or since mr brady it's in the record assisted mr newdow his mother and sister to become citizens there is simply no motive for this gentleman to go out on them and deliberately mislead this gentleman which is not what occurred equitable stoppel against the government high standard against the ins even higher because the courts presume that the ins has expertise in this area and inexplicably the case didn't get cited in the table to thirty's and i apologize that's it costs a case to forty five f third and one one four three one we've got people testifying by phone we've got declarations coming in over here so you have directions my objection is the witnesses here a declaration is there for hearsay houses let's let it all and everything came and every piece of evidence offered came in every witness who was available testified and she found that there was a miscommunication she made a credibility finding she said they're there everyone is credible here they just miscommunication so the next hurdle is clear error and it's not just as tyler senior judge thomas duly signed the report recommendation he's a very careful man he read what she said which was very carefully written an so we have this chill clear error by senior judge silly or your honor staff to jump into the shoes of the cold of the judge go back to the cold record and try to make a credibility terminations and that's simply inappropriate for th panel in the government and what i wrote on my notes you roll the dice because that's exactly what he did he had a choice he didn't like the choice it's a bad choice you're sitting in jail stab somebody twice in the neck and almost kill them and your choice is to plead guilty and possibly get removed or go to trial and you're going to probably lose it's not a good choice why is he in that situation because he jumped up and staffed something he didn't fight was fist he didn't find another way to defuse the situation this is a young man who has made a series of bad choices and his last one was to ignore his public defender and listen t third hand hearsay from a friend as george tyler said earlier to thirty far from a situation of agree just or affirmative misconduct however the court finds that this was an extremely unfortunate case criminal attorney by his own admission not an immigration attorney and not an expert in immigration on the one hand he has advised that he might be subject to deportation from this person on the other hand he's faced with the only person kodiak island who puts people into removal proceedings telling him that he won't be deported i think that it's it's clear given that choice that he was not he was not he did not whatsoever from from removal if you have been convicted of an aggravated felony if you're i mean one exception is if you can show that you'd be tortured in your country of citizenship  but what mr souter talking about is prosecutorial discretion and that's something that you know certainly the attorney general can always choose not to the court somebody who's been ordered removed but that's something that would be entirely within standard just still clear convincing evidence but the affirmative misconduct is just another another pond that we have to show and there's no motive requirement i mean again we wish that we had a mot