validly waive his right to counsel and that he suffered prejudice because it's plausible that he would have received to twelve relief from removal if he was represented by a competent attorney this court can conclude that his waiver of the right to counsel was not valid had going into that proceeding then the first advice nobody had about the right to counsel was during a group advise well it was a recording of the immigration judge and actually in the context he was only told about the right to counsel if he was applying for voluntary departure that he could then get an attorney so this if i find that record problematic in terms of whether he knowingly waived his right to counsel what's your best case for plots ability at the time of the proceedings have any  circuit question or overturn the b i e opinion no your honor not at the time of his removal proceeding however this court's decision nick found that the statutory language was clear and unambiguous and a competent attorney like this court would begin statutory language and would see that this was a closetful argument that could be made that's why this case is on point with united states versus lopez chvez when this court is considering the state of the law i agree you need to look at the law at the time but that doesn't mean that the story is over when there's to be a decision on point that b i a decision was contrary to the statutory language and a competent attorney would have realized that and pursued these arguments the timing of it actually we know that attorneys were making these arguments and we know because of this court's decision it that if this argument had been raised this court would have found that he was eligible for this relief the government does not dispute that he is actually eligible for this relief today is the last chance on the ninth circuit so if a competent attorney had been representing him he would have raised this argument he also would have advised mr morose to expedite the marriage to his wife which occurred only ten days after the removal hearing so even if that had occurred while side legal disagreement an ambiguity in the way that the cases were being what the statute was being interpreted is that your best case for this rule that you are advancing in this case your honor i do think so and i think so because even though there's a circuit split in lopez chavez it's actually telling that there never was a circuit split on this issue all of the circuits to address this this question have concluded that individuals like mr morales are eligible for this form of relief and that's actually why that the law of the land at the time that mr merrill's was in removal proceedings showed that this was the type of relief that should have been pursued it's not as if there was decisions to draw this this question that would make th open question yes your honor i think a competent attorney certainly complimentary to any open question and definitely when there's a clear and unambiguous statutory language in support of the position that is still an open  support a decision that was against the detainee and that wasn't the case for mr morales tellingly even though the court in gomez actually looked to a decision that happened three months after mr gomez's removal hearing to support its conclusion that if he had pursued this argument it would have gone against him that never happened for mr morel us in fact we have the opposite that once this question was pursued it went in favor of mr morales so he would have possibly gotten this form of relief if the court has no furthe his conviction should be affirmed because he cannot show any prejudice from any alleged due process violation that may have occurred during his immigration proceedings because he was convicted of an aggravated felony in two thousand and six he had no plausible grounds for relief at the time is roche sitting as everyone seems to agree he was not eligible for two people they truly thought because he became a lawful permanent resident after enter the united states well you say everyone seems to agree squarely foreclose that issue at that time and in fact the evidence of that is the first fifth circuit case that came out the other way that immigration proceeding it happened in two thousand and three able to several years before mr morales his removal proceedings with respect to the argument that if mr morello's had an attorney he could have been the one to win this issue i think that requires a level of speculation that goes far beyond what this court has accepted in the past and look at this shot as it was one thing to say that  saying it's only a change in the vo eula correct but even so that attorney would have been required to make an argument that was foreclosed i'm not aware of any decision process why why doesn't it seem natural to you as an attorney family has the burden of proving that relief was possible it is it is one thing to say that in effect of attorney constitutionally effective attorney would have pursued an open question is another to say that he would have got an attorney that would pursue the question that was living with this lady who you consider your wife if you marry her then you will be immediately allowed to your own i think that argument is pretty squarely foreclosed by this court's decision and we're able to know in that case the defendant was married eight immediately available requirement that means immediately available well i honor i think this court has consistently looked about whether or not someone can show prejudice in the immigration proceeding that they actually did have whether that is at the time of their proceeding whether or not they could be granted relief and that includes in cases in which the issue was a deficient waiver of counsel i don't think this court has ever sort of considered a hypothetical integration proceeding that could have happened a different time had this person been advised a different way it always it is always worked at the immediacy of the relief at that time are difference between likelihood and possibility i mean it's not really what we're having to judge here is the possibility for a course of action that might have been taken that's correct i mean all these all these hypotheticals are possible it against squarely for close issue it is possible that the attorney would have told him that he should get married but again this court repeatedly held that that possibility is to remote to show plausibility in this context u your honors i just have two points to raise in rebuttal first the government has argued that there isn't any case showing that you can consider the possibility of relief as removal proceedings go on this court in the united states versus  aguilar did exactly that in that case the individual was on the first hand contesting whether he was a united states citizen so that he might not even be subject to removal that constitutional question was eventually decided against him by the supreme court but this court decided that if he had had an immigration attorney who had pursued that defense he would have then accrued the amount of time necessary to be eligible for relief while that appeal is pending so it's certainly appropriate for this court to consider other things that might have been happening while he was represented by an attorney including his eventual marriage to his united states citizen wife as to the applicability of the case united states versus mario luna there are some stark contrasts in that case to this case first during the removal proceedings in more e l mr morial told the immigration judge that he was single he didn't even mention his girlfriend mr morales told the immigration judge that he had a wife he wasn't lawfully married at that time but there was no follow up to that conversation i think the use of the term wife indicates that mr morality has relationship with serious and more serious than that and more else kate's furthermore mr morial married his girlfriend eight months after the removal proceeding mr morello's married his wife only ten days after the removal proceeding so all indications of the factual differences between mr morial and mr morello's show that this marriage was much more likely to be happening during removal proceedings and certainly immediately had his competent attorney told him that that was all that was necessary for him to be eligible for release and as to the possibility of relief that she was not contested below by the government and factually and so the any arguments that he factually wouldn't have received t more than more than not a possibility for relief doesn't need to show that it would certainly be granted it just needs to show that it was possible that it would be granted so given the family hardships that were endured by mr marella since family and that this court has found in united states forces are yet to that family relationships is the most important factor for extreme hardship i think mr morris has satisfied that showing a possible is a possibility a little higher standard than possibility anything's case possible stand your honor i think we need to show that there were factors in favor of granting that relief and in fact this court's decision in united states first cisneros is telling on that in  cisneros the individual the possible relief that the individual could have gotten was a huge she had actually been denied the you later but this court nevertheless found that relief was plausible given all of the factors in favor of that form of relief so i don't think that possibility is a very high standard i would concede that it's higher than possibility but given all of the factors in mr marella says favor including the very low sentence that he got for his single criminal conviction his mental health issues and his strong relationships and eighteen years of living in this country i think it's certainly possible that he would have gotten this form of really a must the course for the questions and thank you can thank you both very much the case