the really about the same seems to me in this particular matter we're not talking about the challenge to the conviction on itself which was in rodrigues they went up and challenge the conviction in that case in this particular case we're talking about a challenge to conviction that happened many times many years before this case in other words we're talking about a challenge to a conviction that is not a direct appeal using patea but is an appeal of us of another judgment which is many years prior and if we look at the many years prior we're looking at a judgment then which if the person was going to challenge it he could have gone up and challenge to the nvidia or rodriguez could have done what he had to do but in this particular instance we're looking in a different situation work looking at what didn't he do at the time and what he had a chance to do is that make the analysis different well two points roger that he's as been consolidated with his legal reentry case so i take your point that there is a time difference but at least procedurally the cases are situated identically and i think that brings me to what i think is really the government's only is was started certainly more then one year after the judgement became final and similarly it was started more than one year after he was an inquiry notice assuming giving you the benefit of the doubt then inquiry notice was when he was placed in immigration custody which would have been in june of tw either of then it seems to me you're beyond the one year permitted and did twenty two fifty five so respond to that if you would because a real with you that is the time when this is a central issue presents an obstacle to you so if you would respond i greet you factually that the petition was brought much longer outside of the year from within when the judgment was final i disagree with you that putting mr casares in removal proceedings put him on inquiry notice that he had received improper advice and i think really the crux here is the nature of the mis advice mr ca was never told that you're never going to be in immigration proceedings if you've been told that i would agree with you that when he's put in to immigration proceedings he should realize there's something wrong here but instead he was told he would be in proceedings but he was the key as he was never told that the result of those proceedings was that he was almost certainly going to be removed and the question is in this case at what point this process should he have known that he had been under advise essentially or under sold how likely his  once he was put in proceedings he continued on his belief that yes i'll be in proceedings but i have a chance to win and so he fought those proceedings consistent with that belief he hired immigration attorney out of his own pocket and then later he even hired  attorney to look into whether he might have received ineffective assistance he also continued an appeal to the b i a so he was sort of the poster child for someone who's acting diligently to determine whether he was mis advised now ultimately that investigation didn't turn up the fact that vies but that doesn't change the fact that he acted diligent throughout the entire process and like i said in many ways is sort of a poster child for someone who's trying to fight for his rights and do what he can but if we look at has  versus the laws of his suggests that your client need not know the legal consequences of the facts but only the facts and there he is in jail with a notice to appear that's right doesn't he know the facts because he may not know the legal consequence of the facts but he knows the facts what do you think is your honor i think the first point is critical when one court say you must not know the legal significance of the facts with courts are saying is that you can't know all the factual predicate to your case in the not realize it amounts to an effective assistance so when mr kasar is received the notice to appear he was nothing about that that petition tells him that his removal is a virtual certainty as opposed to you're simply going to be an immigration proceedings it's just a charging document and so the proper response to that for someone in mr starr's position was that consistent with his belief that he had a chance to win and so we fought that through the ministry of process but at no point was he told the critical fact in this is the fact he must prove they were to win his i c claim which is that his removal was virtually certain and nothing in his proceedings would have clued him into that again this would be a very different case if you've been told you're never going to be in proceedings to begin with then i think you have been fair for someone in the circus arts position like wait a minute this is inconsistent what i was is not the most wonderful language or the it's certainly not virtually certain language but he said quote you know you're likely to be deported never say never and quote so if rodriguez they go wasn't the law at that point what's wrong with that statement and for putting him on notice well two things one rodriguez vega simply echo this court's prior decision in bunia we're going yes that exact same thing as rodriguez figure that you must that and i think it's important that even in this case the government maintains until it gets vaguer that he had been properly advised so what the government's essentially arguing is that mr casares in immigration detention should know the law in the consequence of and the great filmy conviction better than the government's own attorneys what's what's the difference i want to follow up on junk science question what's the difference between you're likely to be deported never say never and virtually certain virtually certain to say it's  hundred percent chance it's a ninety nine percent chance why it isn't that the rough equivalent of likely to be deported never say never but two things what i do think they are i mean they're just different one i think implies you know it's a coin flip essentially and one says look unless something you know unforeseeable happens you're going to get removed but secondly and i read is very good itself this court said that even the attorney's statement that there is a quote high likelihood of removal does not actually state the law what was the basis for our statement if we're if we're going to hold lawyers to this to this very very high standard after patea how do we know what is virtually certain at the b i hey well two points of a legal point a practical point the legal point is that bony is virtually simply pointing out the fact that there was a statute that said he would be removed right that he an invidious on point that you don't have that doesn't tell us anything about and enforcement doesn't tell us something about exercise of prosecutorial discretion doesn't tell us anything about any kind of equitable exceptions to that it simply tells us so there's a that there's a statute fair enough and perdita sure but what tells us what how do we get from patea to bania and rodriguez they got that we know that it's virtually certain we always see other cases in which there are appeals see we don't see and when when somebody when somebody wins before the b i here before an i j or before some other lower level official  it's certain types of uses that that essentially no one ever receives i mean this is the practical reality when someone please guilty to aggravated felony they are getting removed unless there's some extraordinary circumstance and i think that sort of big into rodriguez vegas language it's that it's virtually certain that yes a miracle could happen but  did he did everything he could to figure out whether he'd been missing vies i think he didn't more than nearly any client well which is that he fought it throughout the immigration process he hired two different lawyers and essentially no one was being straight with him and so i think it's unfair to say that well you did everything you could but too bad you should've known better than your own attorneys here here's my problem and i keep challenging you a little bit of the time but it seems to me that your client knew facts when he was sentenced on december and december two thousand and twelve fact of the change of plea hearing the magistrate judge advised him of certain facts seems to me like when he was put into port seedings in june of two thousand and thirteen he was again given a notice to appear and put in jail then the i g said he was following precedent in august of two thousand thirteen and again the motion was not brought until september of two thousand and fourteen well why is that not enough when the i mean he's been in there in december to well two thousand and twelve he was put in the deportation proceedings in two thousand and thirteen the i j a says i'm following president and i'm going to do what i got to do in two thousand and thirteen how could you suggest that doesn't put him on inquiry and not far do what price you didn't even make that argument to the district court or won but even allowing you to make it here i'm saying where do i get to that what i'm looking for is you and i and  colleagues have tried to emphasize to use we're looking at this and we're trying to find out what it is that we can say the statute runs and now what you're arguing to me is yeah i knew i was in trouble in december  thousand and twelve of my attorney says it's ok in june two thousand and thirteen i was put in and i was in jail and then in august two thousand and thirteen and i j who's in charge of this stuff says i'm wrong and i'm this process he should have known not that this would be removed but that he would under advise and so even when the immigration judge tells him i think you're removable that's not the final word he can still have the right to wait and see how the but then it s to be extraordinary circumstances  no because i'm still open to operating under the discovery rule which is one my client knew or should have known that he would be ordered removed and if this were a civil claim if this were someone simply suing his attorney for malpractise i don't think we would think that the second the attorney tells him something that's not legally true that if the client to some on need only know that yes that's that's wrong advice but that's an issue i think the district court was holding my client to i think he can wait he can rely on his attorney and assume there think he says that he will be actually advised i think the harder question is at what point this process he should have known that and so from my point of view he was not an inquiry notice that he would have been under adviser under sold  please the court holly for the united states the problem with the defense argument on the timing here is that it would require or not start the clock when your clock until mr because there is was certain that he would be deported that is when he was actually removed not just a virtual certainty the he certainly knew that the government's argument is he knew the facts at the time he was advised but even if the court disagrees he knew it at the time of the sentencing you know at the time he was placed in proceedings and he knew it by the time the immigration judge ordered him removed how would he know what mean i would have known at the time he was advised he knew the relevant facts at the time he was advised the you know but the i don't know i shouldn't say i don't know what do you think will i actually i'll change it again the phrase you know you're likely to be deported never say never how is that a state well what does it mean it's a confounding statement never say never and are you you want us to say that's pretty close to or even the equivalent of it's virtually certain you're going to be deported so i think the question now that every formulated it is what does never say never the first we're not arguing that that is the equivalent of virtually certain or or words to that effect we do argue that it it's more than just that you may be removed through mr packer kind of characterized his advice several different ways when being questioned by the parties and by the district court about the advice you've given and he was saying more likely than not likely never say never i took that to mean in the district court in the findings i took that to mean that was not one hundred percent certainty  there could come up something he this report talked about asylum maybe that would be applied and so that's what the attorney was talking about like look i can't predict immigration proceedings but again the government is not now arguing that that was the equivalent of virtually certain we agree that the advice does not comply with the standard put up and binny and then they go but again that ultimately the court doesn't have to reach that issue because of the timing and it becomes an issue when when we're the relevant facts known and at the very latest it was at the time the immigration guy you sent the relevant facts are the the fact that he was what the fact of the advice whether that advice was legally sufficient or not is just a legal question if it was legally  but again even if the fact needs to be that it was virtually certain he was being removed that came that no no way or then the point when you were gratian judge ordered him removed as a virtually certain there because you have the person in charge of making that decision determining that usually it will have an appeal of course and that's where it's that's why the center is not certain it's virtually certain that the judge could be overturned on appeal but in general and particularly the facts of this case when he says i'm constrained by precedent it's at that point virtually certain that he will be removed and again as i said the standard is not certain that he was the whole problem with our with our decision and rodriguez vegas i don't i don't know i don't know what statistics we were drawing on to say that was virtually certain again  it was just simply was simply rely on the fact that there was a statute that made you removable the fact of the statute everybody's assumed to have to know that but it seems to me that the virtually certain is is a is a is a finding about more than likely or probably at the point the immigration judges ordering him removed in the government's view that puts you in that virtually certain nearly certain not one hundred percent but pretty close category so even when he got the n t a we thinking yes but even if the court disagrees with that he knew it at the time the judge removed him basically the court can pick any number of these these days when it became virtually certain to him and he didn't file within a year of any of those except for the except within a year of the  after he was in physically removed waited a few months in mexico came back was prosecuted and then a few months into that process when he finally filed the petition if if i think that if i thought this was timely well what happen offer and then do one of the only two options left to request a plea to a lesser offense or proceed to trial here the district court found that that would have been rational in his case for a few reasons one is that the facts here were more aggravated than your standard alien smuggling case and so the court found that it was not possible that the government would have offered him a plea to a lesser offense the aggravated nature of those facts is that he had was transporting ten or eleven people in the bed of a truck drove out what the  multiple agencies scribed as an excessive speed in a crazy manner potentially putting him at risk and he admitted that this was his fifth time doing so within a month so there's no reason based on those facts as the district court found that the government would have offered a plea to something less moreover and incorporating that slightly it would not have been rational for him to go to trial and the reason there is the district court found is that this was a case that was readily provable the defense attorney  defense on the merits here so if he rejected the plea agreement he would have been getting a higher sentence because he would have lost acceptance of responsibility and fastrack points and still would've been virtually certain that he was being deported why well why isn't good detenti bull because for the man to say i am going to go to trial the facts are very strong against me and i don't i certainly don't want to be removed i'll do anything not to be removed i have a home a wife been here many years children i've always paid my taxes it would be essentially the end of life as i know it to be removed i'm going to take my case to twelve individuals and see what happens what's irrational about that i can tell you in my court very often i get people who decide to go to trial even though the factual overwhelmingly against them they're going to take their chance what's wrong with that paragraph in the plea agreement or the advice on the plea agreement so that he wasn't getting a certain deportation he wasn't stipulating to it but he was still getting a lesser sentence with the acceptance and with the fast track so he was minimizing his sentence and still giving whatever shot there was an immigration proceedings whereas if you'd gone to have one juror decide this guy is too nice to for me to enforce the law or not and force all for me to find the government has proven its case beyond a reasonable doubt what's wrong with that scenario  essentially that it was the most rational course of action for him was to minimize the sentence and have some shot at fighting deportation enough exactly what he got with the approach that he took but let's go back to that given the plea agreement had something in there a stipulation that  he would be really moved and the government came down and said ok we can change that that he may be subject to deportation because of the plea what would given me any reason to believe that he said no to that the government may have done more i mean that's all he's got to prove and not in other words the government would have kept all that out of there about deportation of all i'm sorry i'm not sure i understand the quell the original plea agreement said a stipulation to be removed he bargained that he would only be subject or maybe subject to deportation what gives him the idea that he won't get a better result in re bargaining with the government well the only way that that would get better for him is if it was a different charge something other than the alien smuggling thirteen twenty four and because the facts were aggravated here and he had admitted that he had done so five times within a month there's no reason to believe that the government would have offered a lower plea to a lesser charge this exist points out and rodriguez they go to the same is going to say he his argument what he can do is that there are prior cases that have done that the problem with just adopting that without looking at the facts of this case is essential because of per se rule that there's always prejudice at least in the southern district and i would hazard in every district where there's been a charge of thirteen twenty four and then they drop it down to something else that this report loosens we didn't examine the facts in any of those cases but simply simply side of these and reported cases which a lesser stipulation was was recently cases it's can be very difficult to to find this is not prejudice and it's not a percent rule well and that's that's our concern is that i don't think rodriguez vega intended and even if an amicus brief from immigration organization that as i recall sort of affirmed the practical reality that in their experience if you're charging convicted of an aggravated felony you're going to get removed and i don't know that there's a number but i do yeah i remember so i remember seeing the footnote t that his removal was virtually certain and with respect and i just don't think the notice to appear told him that nor do i think a pulmonary decision by an i j would tell him that i think he was entitled to wait to see how the ministry of process played out and at that point i think arguably then he was on inquiry notice that ok you know i was told i only might be removed and at this point maybe i wasn't maybe i wasn't actually properly advised so if i'm if i understand that your point in time when we should start the one year clock is is removal is that what you're arguing yes no earlier than i guess the decision although as an aside this court could even go back a little bit and when mr cazares who hired his immigrate i'm sorry his defense attorney second defense attorney to look into the ineffective assistance if you think at that point mr kasar was on notice that he might have received in effect