can you hear me yes thank you my name is ben cohen and i represent the appellant usually kreutzer on this appeal from the denial of a court no this petition has essentially boiled down to the nd the carno of this test which is whether there were valid reasons as to why the convention was a challenge earlier and the related question of latches on that on that nd prong our position is that this case should be governed by kwan that the circumstances here are similar to this court's prior decision ikhwan and therefore there were valid reasons for not challenging the conviction earlier i think the the hoard of the problem with the magistrate judges analysis specifically advised that he could not kilometer early in hackery should not collaterally attack his conviction and that is just simply wrong on that static did not exist in block on was not specifically told by his lawyer that he could not or it typically in civil cases when it comes to latches in the way a plaintiff is not held accountable for the period of time in which he or she is seeking administrative remedies you know addition circuit precedent i believe at the time in twenty four he was the seven circuits decision that tried as applied both to non advice and improper place so the circuit authority that he was dealing with had the time i tend expressly noted quantum distinguish the as a different situation of affirmative bad advice as opposed to simply not addressing the question so even if it wasn't one hundred percent clear but is still a pretty good argument  that he's not simply sitting there waiting he is still pursuing administrative releasing inclined i mean come on could a final his that issue jump street so to speak but this court said that it was permissible for him a very unclear issue at the time chan actually resulted in three different opinions and was a split decision what judge included dissenting so this was a man on clear issue at the time in addition in order to file the core nobis detention there were a variety of things that he needed to get together including this case i would know if an unusual factor about this petition is that he actually was able to obtain the declaration of the former assistant united states attorney who was handling the case and that in that and then the prosecutor in a declaration saying that he would have considered an alternative lead to a misprint or he would have at least considered an alternative to his prison a filling so there were things that did need to would trigger th amendment injury so i want to be clear on what that means you're focusing on it seems to be that you're focusing on immigration related and by the time that he went back to court for sentencing  as opposed to in anything else that his sentencing counsel told him is that correct yes your honor and that is you didn't receive any advice prepared from his challenge at this so i did also want to emphasize one point and i think this comes out from kwan as well is that one of the things that the government has argued about prejudice is that well witnesses may have been lost or documents many of the mosques and things like that but the release got was ordering one was simply to adjust the sentence from a year and a day to a lesser sentence of under a year longer year so that the defendant wouldn't be deportable as an aggravated felony here we're not necessarily asking that the entire conviction were simply asking that the conviction be requesting and when you factor that into it and i have to be clear you're asking that from this are from the outer part where we do believe that this court can enter that relief because the government has not challenged our position on  particular crime then order the district court to put in a conviction on that crime and then order the district court as to what sentence it must impose after imposing a conviction for the crime that the government's been ordered to charge that seems like a lot of power on where courts modify judgments and do things similar to theirs and i can certainly can provide some of those but we're not asking the court to necessarily alter the stanfords it would just be modifying that judgment to its prison a felony that but i don't think the court necessarily have to do that i mean if the court thinks that there needs to be further consideration of the appropriate form of relief that can remain to the district court you consider some of these matters as well we think that this court does have that authority but if  that we agree that it's really boiled down to that factor at this point so there are going to four factors one of which was never disputed that was the other other remedies aren't available the government did dispute the adverse consequences we lost that and we chose not to appeal what we won that's valid valid reasons test and that's the really the issue before this court and the court alone never reached the question of ineffective assistance so that was never there's nothing before this court to review on that pinion that's out there on this question of valid reasons for failing to act sooner and found that mr croy horrors delay was even more egregious than the one that this court upheld in right now as being to agree just so right now i think it's instructive and the case with a similar time period it was a nine year delay similar to the one year delay in this case in that case the petitioner said i've been in prison i've actually been deported i had diminished mental capacity i didn't have money to hire a lawyer and this court found that those factors alone or in combination were not sufficient to excuse a delay in bringing the koran novus petition and and i think that the magistrate was correct in the district court was correct in adopting th sixteen that's the type of length of delay that this court doesn't find appropriate but i think what's important to look at is that with this when this court looked at chad as an chan this court in chan said look kwan didn't actually announce a new rule so what happened in chan petition in two thousand and sixteen that's really what this court did in quanah so by the chan was also a case where the timeliness was not a factor so kwon of the cases we've talked about this morning was a case where this court looked at timeliness under the valid reasons factor and they are the court did the measurement from the time the mr kwan received a notice to appear in two thousand was was found to portable in two thousand and one and then this court notice in two thousand and two and said that it was timely under those circumstances so if we if we take what this court did and quon as instructive then the district court was right to do it look this from the perspective of when was he told that his conviction was going to make him removable and that was way back in either two thousand and seven or two thousand and eight depending on which of the two notices to appear basing this off of but during that day at least st some time i think at least until two thousand and fourteen he thought that he might be able to get relief through the immigration proceedings some on he has an alternate route which is to go through immigration processes doesn't mean that he's excused from pursuing it in this court they could in the conviction there's any number of things that way is that people might choose to try to mitigate the effects of a of a conviction notice according to both this court and supreme court is supposed to be reserved for these very rare circumstances so the fact that he made the choice and in fact is choosing to continue to this day to fight his immigration consequences in immigration court doesn't relieve him of the fact that he had an available remedy and he chose not to pursue it in terms of attacking the conviction so counsel i mean i think the question suppose that miller's point is what in that sort of mood period krueger know that that gave him that is that he has this other ability to challenge through this process that we're talking about now as i went through the record it seemed like his lawyers in that mid period were saying you've got some immigration avenues available to you your family relationships or whatever and i didn't find anything that that and that he was put on notice that he could try and undo this conviction that he had i mean yes he had and that is to appear that was triggered off of the conviction but did he have any advice to say that he had a way to get around that by trying to get the conviction there's nothing in the record on that and and this goes to this question of whether or  that somehow a time period starts being measured at a time when a defendant knows that he has some remedy available if there's been so there's no none of the factors talk about saying well you knew that corum no but specifically was a route that was available to you and here's our evidence of that because we're really going to have that kind of evidence it makes sense that come back after the fact in this case thirteen years later to say what was known by whom about what what what remedies are available what we do know is that in two thousand and five when he was still serving probation kuan was decided saying the coroner was available for affirmative misrepresentations of counsel i'll turn briefly to this question of the the latches on the say is that this court has said they are separate this court has said that they are that one is not a purely a subset of the other so i think the court's question is getting through isn't watches just a subset of valid reasons i know the th circuit has said that and i look for an explanation and i can't i can't i can't figure out how someone how the government could win on last as well losing under the normal car now that i think part of the answer to that i think would be to look at the  valid reasons exist for not attacking it sooner whereas latches talked about reasonable diligence and so i think you have to read or infer from that that the court has said that there will be some set of cases out there where you might satisfy  valid reasons test but that you will still lose on the due diligence which is a separate separate language so you could be you could have valid reasons but you still didn't do the due diligence likely than taking into consideration the nature of the prejudice that the government suffered from  way i said i think that is to the more direct answer to the court's question is right dell talked briefly about this and there were two claims there both of which were barred by the valid reasons test of her biopsy but the court then went into some latches discussion and  and then i think judge shields to answer your question this question of whether or not the court can order the government to charge mr prison and then take that plea and then sentence him we also address that in our briefing before the district court and really can't that really would be a serious constitutional problem where a court whether it's district court a court of appeals is ordering the government you shall charge him with a particular crime so that we can fight and plead for that crime and we address that in our briefing below also roughly e r three fifty what at that time so it's not looking too good in immigration court but at that time he also had some serious problems with the core nobis petition because in two thousand and thirteen in china is the supreme court says that the da is not retroactive and then the th circuit which is the only court at the time to consider it says well china is also applies to erroneous advice as well so he's got a problem there as well on and so it's reasonable it would be a valid reason to say well we'll continue with