for granting a writ of error the st is that the petitioner is currently suffering a legal consequence which would be relieved by the granting of the petition the nd is that granting the petition is necessary to achieve justice and the final one is that there was no unreasonable delay in bringing the petition as for the requirement of relieving the petitioner of legal consequences of her conviction the government concedes in the district court properly found that that requirement has been satisfied if the conviction is vacated misery that will be relieved of the significant legal consequence of mandatory deportation resulting from her conviction the writ is also needed to achieve justice because  conviction was obtained through that because when she had ineffective assistance of counsel specifically she received inaccurate and misleading advice as to the immigration consequences of her plea and the law in this area has effect of advice and in this case the district court properly found that the advice that miserably to received was objective leean reasonable she pled guilty to a misdemeanor alien smuggling and however even though it is a misdemeanor under immigration law this is an aggravated felony and deportation is mandatory for any for any who and who's an alien who's convicted of such crime even would you agree that even w deportation is mandatory there may be some mechanisms to avoid the theoretically there may be and there may be in some cases but there were not here there is an automatic for this for this particular crime there is a provision for relief if the alien who was smuggled is a family member but in this case and is a rare crito was transporting the father of her child who was not her legal spouse so she was not eligible for that form of relief the government h suggested that there is relief in terms of refugee status or the convention against torture but frankly those are available to virtually every person in deportation proceedings and the courts have held the supreme court in could be and this court and how it be pretty specifically that if you are mandatory if you're deportation is under a law or presumptive and mandatory you need to be told that you need and you need to be told that he did presumption is that you are going to be deported and what she was told was well you might be her lawyer on the record about her as there is i have a letter from immigration counsel which uses the phrase mandatory there is no evidence whatsoever that that information was conveyed to me is a rare crito at any point prior to her plea and in fact the petition that was filed specifically says that she was told that she was not definitely going to be deported that she was eligible for that that there was a possibility that she was eligible for rel the wanted to turn to prejudice i mean certainly your honor what is there on the record to show that she would not have pled guilty if she had been told deportation was me and well i think the clearest i think there are two things to look at and clear when she's pleading guilty her lawyer says immigration consequences are something she has been concerned with and he says she's not concerned with it today the rebut what he doesn't talk about is the fact that the reason she's not concerned about it today is you know we've told her that she did has that she has a chance to not be deported it's true we haven't told her it's a mandatory we haven't told her it's presumptive her understanding is that she might or might not get deported and with that information which is in correct when she pleads guilty in her mind she isn't raising the issue because as far as she's concerned she's already dealt with it she told her lawyer she was concerned about it and so there is this might not have to be this is the wrong way to  any chance that she could avoid a conviction for an aggravated felony because i haven't for example seen on this record any offer of a lesser charge any possibility of a lesser charge so yes your honor i mean this is where i think the the recent decision in the is so important and leave the standard as articulated in the isn't really addressed in the lower court in this case and understandably it wasn't briefed because the district court decides and what lisa is pretty clearly is the year usually and in most of these cases what your honor is pointing out is has been the standard which is you have to you have to show that you could have gotten a more favorable plea or you could if you had a valid defense a trial we says it is those aren't the requirements the requirement is subjectively what would this defendant have actually decided and it says very clearly some defendants even with little or little chance of success at trial are going to choose to roll the dice because if what they're looking at is a plea with mandatory deportation so there's a difference between zero chance and little chance correct  levy who i believe was on wiretapped selling drugs the evidence was extremely clear in lee and he was still allowed to just to make that chance and i would say that  frankly the case is not that is a sympathetic case for a jury because of what happens the person she smuggling is the father of her child he's been in communication with her and he tells her that he wants her to agree with these this is the way to trade with the government he wants her to come get her to come get him she's riding in a car someone else is driving they don't bring him over the border they pick him up in the seneca rez close to the border and then they're stopped i don't think that evidence is worse than the evidence was in levy and in lead chief justice roberts you're correct says very clearly he can decide that he's willing to take a chance because i think one thing that we all know is that juries do weird things sometimes and if that's a choice that he wants to take he can take it i mean they say that he essentially is a defendant with no viable defense and that he would return and it was acceptable for a lead to say that he would have rejected any plea in the favor of throwing a hail mary at trial and that's exactly what you're saying is the same situation here i think we can all mcgreevey that maybe it wouldn't have been the smartest choice for her but it's a choice that she gets to make and she didn't get to make it because she wasn't properly advised by her lawyer what her actual choices were the one other factor that i wanted to turn to is the question of unreasonable delay clearly miserably to has no idea what the consequences are to her until she's put in deportation proceedings that at that point she understand that her deportation is mandatory so she could have been expected to do it sooner than that she does take some time after that before the petition is filed i would point to this court's decision in kovacs would sell out a certain amount of delay a similar delay pointing out that the the only remedy available here is the rid of erik or notice which is an arcane remedy a lot most know i would be willing to bet that no lay people know about it a lot of lawyers don't this is maybe the  time i've dealt with one in my career i would also say that one of the factors in concerning whether the delays on reasonable is whether it's being done for some kind of tactical advantage she gain no tactical advantage by waiting on her deportation proceedings were not stayed they continued everything happened exactly the same as if she had it whether she had brought the petition or not bringing it earlier wouldn't have helped her more and it wouldn't hurt would have hurt her it would have helped in the deportation proceedings either they the defendant failed to show a reasonable probability either that she would have negotiated a plea that did not impact her immigration status or that she would have gone to trial despite the overwhelming evidence and despite increased risk of incarceration the supreme court  find a car notice relief is appropriate are you finding the fact that his is an error that there is in the record the suggestion that she had a concern a concern with a late to some extent because she wasn't told have ignored the burden that they have and if you look at the what evidence they gave to the district court magistrate judge there is no absolute no evidence of what communications she had from her attorney privilege communications that she had either from her defense counsel or from the immigration attorney that she hired and there's no affidavit there's no declaration that right and that distinguishes this case from from all the cases really that where you find  ineffective assistance or where you remand for further proceedings there is just no effort here to really nail down what she was told and given the letter i'll get given demand there is a lack of clarity in the record given that all of this occurred before leaving was decided what about every man for hearing on what exactly she was told what was going on in her head and let the track court the sad what actually happened and i think again  it's the very other defendant here below just to provide some basis and in my biggest this court and believe your you on the panel your honor you have added for hearing but your manage for a hearing because there is the contemporaneous evidence at the hearing that the defendant has expressed the defense counsel it made very clear that the avoiding removal from the country is of primary importance there's none of that here there's there's really no attempt  decided with the benefit of lee and again i think that would also not get to the other problem here which is that there's there's really no chance that she would have received plea that would have avoided the immigration consequences that she as the defense counsel points out she's not eligible for the exception under the aggravated felony definition for this crime and she got  hell marys in every case would permit a defendant who says why not the jury my knowledge and that can't be what the is getting at that space between no chance and little chance yeah i think what what how does justice roberts chief justice roberts addresses this is he says that this isn't a unique case because we have such clear evidence at the time of the police that the defendant was primarily concerned with deportation so that gives substance to the after the fact assertion that i would not have taken a plea or change my plea to guilty if i had you know even the smallest chance of winning  trial and and i think justice roberts is is is he makes the point that you have to look at what the defendant could have kind of thought that perhaps there's a small chance but because deportation is so important to me i'm a unique case because you have such clear evidence you had that also in rodriguez where you remanded and in all the cases that i've seen your honor where they fight in fact in this instance you you have a basis for lee in the rodriguez case in the in the other cases this is not a case where the defendant came here as a young child and has really no connection to the to her home country she came here as an adult she had been in the country seven years at the time of her plea but she has family back in the areas for her or the child's father will be deported back to the dominican republic he was wides and tried to be enter i understand on the on the issue of deficient performance the government has i much tougher road d to hoe given the statements of the council on the record about what he thought immigration or or  would just like to correct one mistake in my brief on page fifty i unfortunately must count of the months it's actually was twenty one months from the time she received a notice to appear which stated your subject matter twenty deportation to the time or for filing of her set forth in the petition and one of the things that she said that is set forth in the petition is petitioners counsel advised her to plead guilty and that she would potentially be eligible for relief from removal proceedings if they were did against her and also that she was never advised that her conviction would make for an aggravated felon and ineligible for all forms of discretionary relief so she was pretty clear what she was told  told that she has the opportunity that that was that she's pleading to a misdemeanor she's never told she's going to be mandatorily removeable and she is told that she's got options for relief so i was not  petition saying that this is what the petitioner has told him and then the petitioner separately verifies it and one thing i would point out you know there's a lot of reliance here on this letter from the immigration lawyer that should have put her on notice  letters in english misery crito does not read or speak english i will tell you you know she she she is a spanish speaker she has a lot of difficulties in english so it's not as simple as well obviously you would have seen this letter and you would have understood it would have had to have been either translated for her someone would have had to read it to her and explain it to her in spanish or it would have had to have been translated into spanish there's no indication that that ever happened what we all we know is her saying i was told i would be eligible for relief i was never told this is an aggravated felony that may be mandatorily deportable had i known that i would have proceeded differently and what me is saying and it's been talked about in is that it's a very subjective test and a very specific question is this particular person what would they have done had they been properly advised and she clearly wasn't properly advice she clearly didn't get to make an informed the decisions that are the decisions that i've looked at that are addressing a crime notice petition they apply exactly the same ineffectiveness standard as in strickland and they don't need differentiate what it is there that this and in fact the nd circuit has said that one of the bases for determining that the really is necessary to achieve justice is is a determination that the underlying conviction was obtained in violation of the th amendment right to counsel including the right to effective assistance so no there's not a quality of counsel on both sides of what might other people might consider a minor case is extraordinary and i think the panel is and should be very very proud of it thank you thank you your money we are