seventeen year old boy are you say you say seventeen but then there was other evidence that he was nineteen almost twenty so i have as i have been finding a pact on that yes or there  he was seventeen years old there was also the age listed on the criminal complaint so the record contains two discrete instances words i wish it was what the record contained my question i said that the record reflects two different ages my question was was there a finding of fact on that and you said yes or and then you gave me an answer that didn't support it very finding of fact acknowledging a dispute about his age and saying i know that there's two different ages here on the record and i am claiming this is the right age and that's the wrong it was anything like that motherhood was something like that at the end but you're speaking to judge if help is the problem when the district even though there was record evidence at the time the court entered that finding and at the time ultimately the court sentences to markets that the district court special finding was an error and that's one of the reasons why we claim that it would have been much more prudent for the district court to consider this claim after a full blown evidentiary hearing well you know this is all very interesting i am so fundamentally befuddled i don't even know your client's name his name is m had a seventeen year old is going to be able to answer that question is going to take the easy way or the hard and when you stop tell it as well you can be removed tonight you'll go back to mexico tonight you'll be returned home age there is nothing in the record to indicate why he made such a foolish choice at and for family disadvantage himself not just in that for sitting within this proceeding there's no explanation for why that and in our brief ask you know at that time immigration was required to segregate minors from adults and was there any kind of age verification process used we simply don't know but what we do know or you don't fault the immigration service or for not treating him as a model or do you know i thought the immigration service what is the legal argument that you make that blows as a consequence of the fact that he's seventeen and what do you want us to do about it the legal argument that make it is that this prior order expedited removal was fundamentally unfair because it was induced by a promise we came here when i was twelve i returned to mexico to visit relatives and then you poppy and then he was caught up in a proceeding which this court has to decide which to take up the mantle that the district court s and that is that prior order of expedited removal fundamentally unfair and said well wait a nd fundamentally unfair well you know maybe it's unfair maybe it's not maybe it's not not really it's maybe i mean what's the law  based on a full understanding as to its meaning and effect nothing even remotely close to that is apparent on this record seventeen or seventy what case do you say authorized those do what you want  this country when did when did your client st alert the government that he was a minor and was making you know making the argument that the expedited order removal was unfair when we filed our motion because of course you've told us immigration had no way of knowing that this kid that you claim was a seventeen year old kid was actually not nineteen which he claimed to be if that was my only argument it would be a we spanish and the advice moved right said you can agree to be removed today and you go home same day or you can try to fight it in state custody and you have to get both were true statements yes those are true state that consequences of those choices you don't tell them you've got a problem and they did mr poor what what what if what if your client had told immigration i'm seventeen what would have happened they would have said we're going to remove you without entering an order and if you whatever let me ask you this you know response to george didn't get which is earlier question this put a lot of questions that i think are really good normal answers that i don't understand he said why isn't this case why shouldn't we just dismiss this case this case will continue to affect mr marcus for the rest of his life if he should make any attempt to be edge of the country well either of just ask you why couldn't we dismiss this case with the thank you counsel tour from the government two thousand and nine he doesn't acknowledge that he once said in that very proceeding under oath that he was nineteen years old at the time so the government responds and says well actually he swore that he was nineteen to the border patrol and the government he doesn't say i've got testimony i would like to present about this he doesn't even respond to the government's explicit contention in its response that no hearing was necessary so then the memorandum opinion or comes district corps because it's so easy for the district court to address it right there if there were facts that he wanted to put out there would have swayed the court's determination in his favor then he could have asked for that hearing and then would have had it we would have this issue on appeal at all we should never be hearing for the st time an appeal that hearing is necessary to resolve disputed facts nor could the plane for the district court to have result in motion in this to the contrary in whose conviction he was this court has held that with regard to that other type of collateral attack the district court is not required to hold a hearing without a firm idea of what will be presented at that hearing that f idea was entirely noticeable load it still absent here an appeal now there is of course another way to resolve this case without pursuit in down any power at all and that is for the court to decline to undertake the play in error review the court has discretion to undertake that review absolutely it does but it shouldn't exercise that discretion in this case to overlook the failure to argue for a plane or review in the opening brief the corps has has exercise that discretion in some previous cases such as court he were going to said it appears that the failure to argue clean air in the opening brief was just an oversight or a mistake there probably so if mr martin shows up at present to absolve there's not going to be anything in the record that he would ties this name with this case to his new case there will be your honor because i believe the district court to disregard when it pertains to his age by the way and i don't recall that he went for his whole life story in there i thought it was a little bit more repeated that he was just visiting his mother in santa fe  stripping provision mendoza lopez i mean we do have a th circuit case don't we goes his way yes there is one circuit that goes his way back the th circuit has never ruled on it the did have due process rights before they could be removed from the country and the government in those local has conceded that those rights had been violated when the aliens were removed with out the opportunity for judicial review so the supreme court said if you don't either of you there and you're not going to afford it here then you cannot use the result of that prior administrative proceeding as an element in a criminal offense but it did not say that you have to give that same our rate of procedural rights to people who are in the class of the writing aliens and it did not say that you have to for arriving aliens judicial review at a later date of an expedited removal before it could be r criminal because a pregnant aliens in a separate line of cases the supreme court has made it clear that arriving aliens have few or no due process protections in their removal proceedings and so to allow them to bring a claim that the proceeding was fundamentally unfair is asking a question about due process in a proceeding that is not subject to due process because of the status of the alien there it essence says that you can't use the result of a fundamentally unfair proceeding and a subsequent criminal prosecution where there's been no additional opportunity for review what is your view on with this case held that that case was not moot because the challenge to his conviction is the cardinal consequence doctrine because there could be a collateral consequences and that ten years or so down the line when that removal bar is no longer it does under the court's case prevent the case from being in that but it's still something that is that that is out there this is not a man who's sitting in prison right now on that on this conviction and that is a reason that i w to the court that this is a good case to use to send the message that you can't manipulate plain error by strategically failing to argue in your opening brief hoping the government doesn't notice and that we wa and that you win a better standard or review by your own failure to comply with the ten target rules because this case doesn't involve any plain error and because the consequences of this conviction to  at this stage this is a good case to send that message i wouldn't be asking the court to go that direction if the government thought that there was indeed any plain air here