district court committed two separate errors both of which warrant reversal in this case they are related but they are separate the st error is that the district court applied the wrong standard to determine whether actual prejudice was shown defense just record excuse me urged when it found that the defendant had carried his burden in this case i'd like to start by talking about the errors the district court made and then turn to the defendant's arguments in his response a brief in support of the district court's judgment in order to lauch a collateral attack on an underlying removal proceeding whether under the due process standard or under  defendant is required to show both that there were fundamental defects in the proceeding as well as the existence of actual prejudice this court interprets actual prejudice to require both a showing of defects in the proceedings as well as a reasonable likelihood that but for those defects a defendant would not have been removed from the country the district court here didn't require the defendant to make that aggravated sexual abuse and i don't want to minimize the seriousness of that offense but it was essentially a statutory rape offense that involved statute by statute a victim under the age of thirteen and a perpetrator seventeen or over that conviction was by definition an aggravated felony under federal immigration law in one thousand nine hundred and six just one year before the defendants conviction congress expanded the definition of aggravated felony to include sexual abuse of a minor the defendant statutory rape conviction was for sexual abuse of a minor and under oath immigration law categorically if an alien has been convicted of an aggravated offense he is subject to deportation there's no question here and there is no argument that the defendant was subject to deportation was unduly deferential to the immigration attorney and nd that the i j a essentially gave the defendant bad legal advice at the removal proceedings the prejudice th your court required the defendant to show was not that he would not have been removed but for the errors in the proceedings instead he required the defendant to show that the defendant might have made some arguments against remove all had the proceedings unfolded differently now that the prejudice is really layer upon layer of speculation here the district court found that had the i j not been so deferential to the immigration attorney badge and would have set bond at one thousand five hundred dollars that immigration service would not have appealed that bond despite it being a mandatory detention case then the defendant would have made that bond and then  on bond the defendant would have retained an attorney once he had an attorney the defendant's attorney would have made arguments against removal and might i add those arguments that really were not forseen in one thousand nine hundred and ninety eight arguments based on to make the wrong decision and find that he wasn't removable we know that's a wrong decision because case law that as it's developed in the year since has confirmed that the defendant's precise conviction statute of conviction was for an aggravated felony the defendant doesn't claim otherwise get but this court has already held that the ability to make arguments just not establish actual prejudice and mendez morale is this court held that not only must defend it have to be able to make arguments against removal and defendant has to be able to show probable merit and here again not only do we not have probable merit couple years later and then i think my mother once a good seven years later there actually is no relevance to that your honor and the reason for that and this is the point i was going to make later but i will absolutely make it right now  for closes the notion supreme court precedent for closes this argument that this court should essentially take a snapshot in time and look at the law as it existed in one thousand nine hundred and eight under supreme court precedent when a defendant lodges a collateral challenge to his criminal conviction much like a collateral challenge to removal a removal order excuse me a defendant has to show if he's arguing ineffective assistance of counsel under strickland must show fundamental unfairness exact same standard that applies here and it's showing fundamental unfairness a defendant challenging this criminal conviction must show that there was actual prejudice defined as defects that result determination we have the benefit of hindsight that courts apply current law in assessing whether or not there was prejudice there's no reason for a different result here and the defendant doesn't argue that under current law there would be a different result and for that reason the defendant simply cannot establish prejudice that the government didn't proceed this argument in the defendant's brief until their reply to the government's twenty a j letter but the best case i can give you for that supreme court decision holding that current law applies is lockhart the fret well and that's found at five o six you ass three  that court in that case it specifically holds that this but courts use current law to make that outcome actual prejudice determination and here under this court's precedent in escobar which was the case the no question that's the case here was convicted of an aggravated felony and defendant doesn't claim otherwise and we know the district court applied the wrong standard here because nowhere in the order does the district court say anything about potential merit to any whether or not the defendant was in fact convicted of an aggravated felony or whether he might have been entitled to any forms or release the district court doesn't address it that that that word or and furthermore we know that the district court didn't apply the proper standard because the district court adopted are not in this case and the magistrate judge in that are in our responded to the the defendant could contest removal was available to em the district court adopted that are not are and that is completely contrary to this court's case law requiring a defendant to show a reasonable likelihood he would not have been deported he would have now that the nd argument weren't in reverse excuse me the nd point the government makes in its brief is that the defendant failed to carry his bird and so the district court erred when it determined that the defendant had carried his burden the defendant makes two arguments in support of the district court's judgment the st is that the judge strikes you mentioned that we should really take this snapshot in time that whether the immigration proceedings would have unfolded differently had he known he could have maybe sought forms of relief but what that is essentially his attempt to blame his own  on the conduct of the immigration judge in carrying his burden here to establish that he would not have been removed from the country he wasn't confined to the record as it existed in one thousand nine hundred and eighty eight his burden did testify at the motions hearing but he never testified as to any form of relief anything that would have been rebut relevant to any form separately for removal instead he testified that had the i j a set had an attempt to carry his burden and he failed entirely to do that he shouldn't get a nd bite at the apple there's no question here that these issues were well presented to the district court and at no point did the defendant ever attempt to carry that burden at a minimum and he was obligated to tell the district court what relief was available to him plan and why he was entitled to it and he never did that he failed to carry his burden the district court should have denied that and in this case it's important to not forget what the underlying conduct was here the log on and what proceedings because we're looking at years question reviewing the myriads of a prior removal proceeding to see whether they can be used in a subsequent prosecution and you have to start with the misconduct  conclusion that the immigration proceedings were unfair buttressed by the immigrations failure judges failure to comport with standards expected of an impartial decision maker maker he concludes immigration proceedings were judge turned to the immigration lawyer not mr leo munroe to discuss the release that might have been available that would prevent his deportation and if this was an appropriate judge davis went quite a bit further and is now client suffered from and from the misbehavior of the immigration well he does judge davis does go through an analysis of the actual prejudice to his rights that he was deprived as right to be all right to get a lawyer about the bottom line and tell us why there's a reasonable likelihood that the man would not have been deported i in essence you he since you saying that the judge applied the right standard will skip over whether he did question what are you saying are the grounds on which there's a reasonable likelihood that he would not amend a court is there anything other than the hardship and the well those are fundamental  situations where the where the prior proceeding itself was so fundamentally flawed we basically didn't have a this is a sham proceeding so we're having a judge talking guy out of a lot of presenting any evidence so he was deprived of the structural air no you have to actually establish what would be the prejudice why he wouldn't be deported well and and we don't have to us we don't have to establish that with any with certainty ok all of the tourists and just requires and the law requires that actual prejudice exist where the is because it seems like both of them were so concerned about the fundamental fairness of the air which is a more i don't give you rot that we kind of forgot about the after all practice and so no record was developed even later on about whether or knowledge that so we are left with those statements as the basis for determining yet actual crozier's once again i say that the actual credit is that that's not an absolute he's and as an aggravated found he was not eligible for that and to the extent he's claiming that he was based on his adjustment of status he simply didn't  split on the circuit split is on the issue of whether someone who enters the country illegally and then becomes a legal permanent resident can have access to extreme hardshi a minimum to carry his burden he had to do it at least tell the district court what he was eligible for and he did it i never did and i know my time is up but i did want to make one final point if i may the government does not agree that the district court's hyperbolic criticism of the i g is warranted here we think that the mists that error in the transcript regarding the bond amount which is clear from the tape if your honour's have any any question about that but if you listen to the tape the i j a did not differ as to the bond amount to the immigration attorney and really i do think that was the entire basis for the district court's finding a defect here but that  strategic matters the government has only appeal based on the actual prejudice not because it doesn't just agree strongly with the characterization of that i just conduct here all right thank you both counsel for your