factually that he had waived his right to appeal it before taishan order and and that it was not considered an intelligent waiver at the time he also testified in the district court about his experience before the the i j a when he had his deportation hearing not only did he say he didn't understand what his waiver right appealed to appeal was and what it meant to him he said it in understand what the aggravated felony was what the what the impact of what what that would be on the proceedings that he didn't understand what type of relief he was eligible for he hadn't heard of the type of relief that we had raised is one of our issues that to twelve h really and not only did he say these things in court and testify and file an affidavit but there are also letters before the i j a where he complained about his attorney and i think those letters do corroborate that there was an issue going on and those letters were never resolved if you look at the brief transcript from that hearing mr mal the letters were brought to his attention to the attention and he said he showed it to the attorney and nothing more was said that happened after he was already ordered deported and waived his right to appeal so what's the bottom line that is waiver was not knowing intelligent it wasn't going in intelligent but we raised that issue in the district court and the government had the burden of proving by clear a convincing evidence that he did waive his right to appeal they had an charged in his n t a they also challenge his to twelve h claim so i believe that they've waived that issue on appeal because they he he submitted facts brought it to the attention of the district court and the government didn't contest that they had the opportunity to do so and the burden was theirs and i think if they don't do that they waive their right to appeal that issue now your main argument is that they waive their right to to challenge whether or not he his right to appeal exactly they didn't challenge it it's the first time it came up from the government's perspective was on appeal and i think that after if he's not deportable as charged then he was denied due process and he suffered prejudice the procedural required are not imposed on him because he did not knowingly and he did not give a considerate and knowing waiver of his right to appeal so those that procedural hurdle no longer applied to him and i was the opportunity was in the district court for the government to claim that he didn't do that ok you want to save the remedies which is another prong of thirteen twenty six d in our position would be that by the plain language of the statute it does put the burden on the defendant now there's a good reason or at least proffer this reason why this issue really wasn't explored much below is because the parties were centrally focused on that third prong at the time this court since one thousand nine hundred ninety eight states vs bechard squarely held that a california residential burglary conviction was an aggravated  felony in the defense position was that was the only basis of removal i j was wrong about that and therefore i didn't have a knowing intelligent way of appeal so the parties you know the whole question was whether becker and progeny had been rendered invalid by intervening supreme court precedent to exactly use you saying then that excuses you from addressing items one the significance of that excuse you know whether it's heavy enough that you but this court has set another context too i mean in the united states versus leon posits a case that we cited in our twentieth record or twenty j letter the post stated policy this court does appear to be that it wants district courts to reach other problems in the first instance and in that case in leon pause the issue was under thirteen twenty six d three whether the alien showed prejudice and even though that had been a rule must the district court do in your view well denver to really focus on that waiver of appeal i mean so what what what additional needs to be added to the record i think it for  so we don't have a transcript of the actual i j a hearing correct so we have that little summary that's contained in the record right right and so we know at the bottom of that it says he waived his right to appeal correct we don't know what with parenting that record doesn't show what he was advised or anything or correct i mean that's that's summaries of pages eighty to eighty two the excerpts of record that's the last line because that was the last part of proceeding and also it not one point in those three pages is there any mention of one iota of confusion by this defendant the first line is that where the second line is that he confirms that he was advised of his rights it's at least once or twice during that hearing to the i g says you understand what's going on do you have any confusion the defendant trial you know a thirteen twenty sixty is supposed to be a pretrial motion the legality of right of move was not an element but the way judge burns went about the way he proceeded with this was he started the bench trial and then when it came time for the government to introduce the deportation records he had hearing on the motion and then he ruled on the motion because it was all about whether dick comp you know headed rendered a becker irreconcilable he denied it then the government finished its case and then the defendant testified that so that's why i say yes and no your honor because he testified below but he wasn't testifying as to the motion and in fact the district court said well did he testified about what took place at the immigration hearing he made a few comments about yeah of course now you know with ten years later in the affidavit and now you suddenly claim that he didn't understand what was the government's cross examination rights curtailed in any way no i wouldn't say that i think it you know that that point they were just focusing on the prosecutor wanted to make sure that the defendant was admitting a lot of the basically that the elements of the crime and and then i know at the end even judge burton said well i appreciate hearing all this i think most of these facts go in that a geisha i'll consider them at sentencing cannot you know anyone cannot challenge a prior would or move on let's see proves one two and three but i do know that there's that we have a case case law from the circuit right exactly which says you know so i don't know how that can be reconciled but obviously that so well said well well  x there would be mandatory exploration of a claim of ineffective assistance of counsel is i'm understanding that that would happen yes i mean i don't know usually that this court prefers having those kind of proceedings in  but that's i mean you know we've heard affectively i'm certain there was ineffective assistance of counsel them and what i'm asking you is how you perceive that to be  handled in the district court if at all well i guess i would say if it all and it shouldn't be because as a matter of law at this point of ineffective assistance of counsel i see claims have to be reviewed as of the time of the disputed conduct in two thousand and five there is no question under united states versus becker that california residential burglary was an aggravated felony and i guess the government's position would be that notwithstanding the claims of ineffective representation spoke to one but that the other one was the one who then showed up yeah and he you know what was you know that's kind of bizarre right but again whether he had had ten meetings and whether it was the same lawyer that came at that time and i don't know you know you know we have a couple of men and i know they're not binding they're certainly not authority but there's a couple of recent memory disposed that say that in this kind of instance where the underlying basis  a lot of that goes to this court i mean when you start over there are basically two kinds of attacks on a underlying order of removal you either check remove ability is charged or the failure of the i j a to advise you of relief this court's case has been clear for fifteen years if it has to do with the erroneous advice all of relief then that's that excuses the failure to exhaust and so therefore if the turns out somebody wasn't an aggravated felon but it only goes to remove ability or i'm sorry to advise of relief in that situation i can see why proof of fundamental unfairness would satisfy the whole kit and caboodle this on the other hand was an attack to remove ability is charged and under the ninth circuit's bifurcated approach to retroactively there's no question that for purposes of relief his conviction was an aggravated felony in two thousand and five it wasn't until two thousand and fifteen that to my guess it's advice or gets decided so what the government's position would be since he can't dispute the failure of the i j a to advise him of relief his sole grounds abele of appeal would have been that he's not removable as charged if you were to say that iranians finding on that automatically takes care of exhaustion to them what would be the whole point of exhaustion requirement that's the government's position and unlike a failure to advise of relief the reason that excuses failure to exhaust is because of an alien doesn't know word one that he might have been eligible for this that or the other relief that you do that in the following given that there is no transcript of that and i think it would be it would require getting that transcript and then if you know if it turns out the transcript that i just blew through this didn't mention anything about the right to appeal usually what happens at the beginning there's a group advise all everybody present this is what's going to happen today you have these rights i mean if it turns out that that wasn't made the government will be the first to say hey no problem you know there's no failure will dismiss the case but if it shows that in fact this alien was advised of rights and then was point blank else would you want to appeal or not and then says no then it would be our position that that's a valid waiver notwithstanding ten years later filing a self serving declaration where suddenly oh i didn't understand  anything and everything i mean you look at excerpts of ready excerpts of record pages eighty to eighty two not one mention and you know if the defendants or defense counsel put the summary in one would think if there was even a single instance in there of the and five the prevailing construction of law in the ninth circuit was that if an alien had a aggravated felony aggravated felony conviction or statue a lien eligible for relief in that view i believe was a little summary that we provided was actually pretty much everything that was said in that four minute hearing and before the i j i actually prepared that listening to the tape that was provided to me by the trial attorney for the government there might be a word or two that is left out because there paraphrased but that's essentially all that was said below so i don't think there's going to be another transcript developed and i also think the government can't now call mr maldonado as their own witness and and cross examine him when in the past they chose not to know judge burns chose the way this proceeding was going to take place and while they're not a did not his testimony was not offered in mitigation his testimony was offered to support his his claim that he had grounds for relief because there was an extreme hardship on his mother who was a citizen and also on his children who are a citizen and that's why he was claiming he should have been advised of two twelve a three leaf and also that the attorney  should have researched this issue warrants and at least made an argument on his b have your argument is that even the judge barnes controlled the way in which the proceeding that there was no curtailment cross examination rights or any restrictions placed on the government in terms of presenting evidence such as the the transcript told what whatever they wanted to present the happy opportunity to do that is that they get the argument right yes it is some point the government actually objected to some of the questions i had and and that was the end of it they didn't pick it up on cross examination their cross examination was focus  trickly on the elements of the offense which we had really conceded that guilty of re entering the united states the question for us of the whole time was the thirteen twenty six the motion and as far as the ineffective assistance of counsel argument two attorneys didn't actually sign on to the case mr karr dana signed on to the case and he had a partnership with mr fyfield might mystify field unfortunately is  deceased but he was the one who showed up in court he was not the attorney of record and mr valda now those stated that he had only spoken to him twice using cusses a guy just got out of prison and put right into immigration  not given any bond his family hires an attorney and the attorney talks them a total of two times for forty five minutes then sends another lawyer to represent him at the hearing and the other lawyer does nothing other than agree with what the j said but i think you really have to look at that the record the letters in this case are really important because he complains about his lawyer and this supports his argument that he's not just making self serving claims that he didn't understand what was going on he was trying to prevent the proceedings from going forward but he's not a lawyer he gets in there the judge doesn't adjust the lawyers they go boom boom boom the hearings over oh by the way counsel your client complains about your partner or something here some letters and that's the end of it so i don't think that it's fair to maldonado to say that what he now says is not true because he did try to prevent things from going forward wit appealing the ruling i think that the argument that that's made in the cases and we talked about the government counsel said that i can see that the who's money bar as decision i concede that the majority in dic a said that they couldn't hold to the i j a to the burden of advising someone on the to twelve h relief but if you look at judge fish's concurring and dissenting opinion he shows that not only was that a necessary part of their decision but they also misconstrued the language of this in re rose us case so i think you do have to look back and see that if relief was reasonably possible at the time i believe that it was it was a complicated argument it's a difficult argument i'm struggling to understand it as a criminal defense attorney but also the aggravated felony argument the case that most people do seem to focus on is taylor and then park and park if you look at parker park was actually skin construing a different statute they were considering the career offender sentencing guidelines they weren't construing the eleven one a forty three f definition of a crime of violence so a great attorney would have gone back and looked at the underlying opinions and challenge these issues especially where he's getting paid or at least preserve the opportunity but i think he could have argued something i mean we've all been before courts your heart by it's are going down and they're going to get a tough sentence but you don't just say well you know i acknowledge that the court's going to hammer you and that's the proper result you've got to put up a fight in this case had he put up a fight on a couple issues those issues might have been preserved and might have actually succeeded all right thank you counsel matter submitted