sustained as well as well as all other post trial motions based on quote the substantial assistance and drug investigations afforded by mr hockey unquote the us government agreed to file a motion to reduce mr hucks sentence a motion that was granted the criminal charge the form the basis of the charge for movability here but instead took his case to trial mr hauck is precluded from establishing any sort of reliance interest that can form the basis of a land graft like retroactive you know two thirds right and that  post conviction conduct is completely irrelevant to any analysis of whether an ira ira's restrictions can be applied to him that as far as i can tell that particular position the government's position is not an exception in any  discussed the conduct at issue the conduct that was being focused on there was limited to two things the actual commission of the crime the crimes at issue and secondly the decision to contest the criminal charges and go to trial rather than enter a guilty plea and focusing exclusively on those two new forms of completed conduct this court and others have held that aliens who committed crimes and then thought those criminal charges can plausibly claim that they would have acted any differently if they had known about this restrictions on two twelve serially this court as well as the second fifth and ten circuits have all recognized however that the fact that an alien was convicted at trial is not the be all end all of retroactivity and analysis and that even per permanent residents convicted at trial can retain their eligibility for discretionary relief from removal if they can establish that or ira would impose some impermissible retroactive effect on their your strongest argument is that he gave up his appeal rights now how do we deal with that in light of the statement in st cyr the comment on the person's going to trial giving up their constitutional right not only did he give up his of his direct appeal he agreed not to pursue or to withdraw his motion for acquittal and his motion for a new trial but also i think there's another issue here in terms of his reliance and just relying on prevailing on his motion for acquittal and yet as part of the agreement that they struck with the u s attorney's office they agreed not to pursue that so it's a combination of withdrawing hasn't done a little suspect a lawyer statement  five years you know we're trying to figure out i believe that there was i believe that there was you know i having a difficult time ascertaining what was the maximum possible sentence for the crime and i don't have an answer for you on that unfortunately but i believe it was yes you have you have t what is the precise relief you ask under each of those causes them well you know the issues presented presented by the two cases they seem to me to be the identical you know the evidence is slightly different but ultimately the question is was the board has set forth a valid retroactively claim are you waiving the first one that you now don't want to remand well i think with respect to the first one the board of immigration appeals said that they can't even rule on this issue and strangely this court's precedent seems to agree with this this court's precedent says that we don't have to even raise these retroactivity claims with the board because the board can't rule on them this court said that is it said in garcia ramirez so it's not an issue board never resolved the factual dispute about when the agreement took place the government's taking the position that there's no evidence here that the agreement was entered into before the important date act in april twenty fourth one thousand nine hundred six and this the court of appeals obvious is not a fact finding body on that particular point the case may have to go back to the board can can make a determination as to when the deal was struck we think the deal was obviously struck in june of one thousand nine hundred five because he began relying on the deal and in fact testified before the grand jury in october  but that aspect of the case may have to go back to the board so the board can resolve that but the legal question about whether you know somebody who withdraws an appeal or cooperates with the e p a hoping to improve his chances of success on appeal those are issues that this court has to ha morning it please the court my name is the new farrier and i'll be representing the attorney general in this matter judge reserves he pointed out it is critical to note that there are two cases before the core and what exactly is before the court with regard to each of them dispute that the board's decision in applying its own regulation was appropriate and that is that the regulation improperly promulgated days does bar anyone who's gone to trial from getting relief so therefore the which which which is which docket number do we deal with it would be at it would be the first i guess it would be the second docket number it would be the one that came through hey b s which was the actual soaking review of the dismissal that that's the one that we would remember the board correct and now one again the claims regarding him going to trial in reliance on two twelve's were not properly raised him or not before the board at that point that's that the only real case which raises it however the government's position is clearly that his claims on both aspects of his reliance either being going to trial or on seeking trial cannot possibly plausibly can't claim that they would have acted differently had they known about the elimination of two trustee really and sarah via reaffirms this principle and states even more strongly wants to go further and consider later case law that seems to suggest that there might be an objective belief objective a reasonable reliance that it can examine then that is where our argument regarding the liberty interests are  does make reliance a pretty critical factor and this court has reaffirmed that principle in its case law and in addition if you if you mark to consider reliance  factor here i think that the court would be basically rendering moot the whole analysis that the supreme court did in st cyr you know maybe it was the only way you can get enough justices to sign up on one side maybe but that is in fact what situation well i think then we need to look at the court's case our decision and tell our i'm saying that correctly in which the court reaffirmed again arm in tears and emphasized the supreme court's concern in of an interest and we point out the various reasons in our brief i believe and in addition even if you were to look at that belief in this particular case to the object of lee reasonable belief that he cites is that he believes that he was still be eligible if you were through that appeal but again it doesn't it doesn't make clear what what was his detrimental reliance and what withdrawing that appeal basically the government gets no benefit from withdrawing the appeal to the extent that it has already put forth its full burden of proof and prosecuting him and determine and you know proving that he was guilty here yes he cooperated with the police department and two twelve he gave up by going in by choosing to withdraw the appeal and again yes our position is that there can't really be an objective lee reasonable detriments our reliance here on the