the order underlying the prosecution in this case had not been judicially reviewed had not been judicially decided and yet the district court in this case rejected it rejected a request to entertain a challenge to the order on the two but that does not mean that it excludes all challenges to a removal order and that is clear from most temporal decisions some of which were cited in the course letter asking counsel to specify or to focus on particular decisions one of those most specifically is immigration authorities it does not extend to collateral challenge which of p s r a hades petition something like that challenging that and not the criminal consequences that flow calabro that's your position that is that is that is my position and i think cover hippias challenges directives challenges to an order of removal but it did not extend it to other sorts of collateral challenges and that would include subsection b seven which as this court recognized in united states versus charles well is a very that is required that is a required reading under the statute for an additional reading much beyond the interpretation of review because if you were to read review to also in compass collateral challenges of this sort then that would essentially read subsection b seven the collateral order collateral challenge provided out of the statute subsection eighty five dollars court sample states unambiguously that the sole and exclusive means for challenging and work for sticking review of an order shall be through a petition for grew in the courts of appeals and it goes on to state that the other jurisdiction a limited provisions including a too soon shall be interpreted to bar any claim seeking again review of any order of removal including in the statute that is subject can be seven does not impose any such requirement on a defendant on an alien in this particular circumstance it says that a motion may be brought to challenge the politically of an underlying order of removal if the order of removal has been judicially decided it does not say that the alien must proved that he was tempted to seek review or he was printing the occluded from seeking judicial review in a prior proceeding and the reason that matters it's doubly important because that precise requirement exists for another collateral challenge  thirty seven that it did not intend them to go lockstep of this and that's that was that was my point so i apologize if i look like i was going someplace else and that's exactly right your honor since they adopted that provision to congress adopted that requirement goes to the scope of of review when you get to have it here we're looking at what g differently decided means and if someone has waived their right to have the opportunity to appeal waive the right to appeal why for these purposes should we interpret she differently decided not to be satisfied well because traditionally decided means exactly that to my mind it means that there is an actual decision by a court and that's what the provisions of that context we're talking about review by a federal court and approval by a federal court and to be decided by a federal court means that a federal court must actually adjudicate the matter and there is further support for this beyond merely the absence of language that otherwise appears in  did not was not included in section one hundred and twenty five thousand and twenty seven dollars and there's got to be a reason for that and the reason is that congress only one of these to be decided if only if the if the order was judicially decided that's the only circumstance in which an alien is precluded from challenging it and further support for this is that the actual language of subsection b seven is not a recent development in the immigration code it was originally enacted in one thousand and fifty two along with the original nachman of the entire modern immigration code and at that point there were no such real limitations no such exhaustion restrictions no limitations on you must seek review in the court of appeals before you proceed elsewhere at that point in time that's quite common for district courts to consider these types of issues so there's no reason to assume that congress would have imported that type or acquiring at that time and then when congress reenacted the provision placed it into where it stands now one thousand two hundred and fifty two dollars b seven at that point in time congress tapped the language x as it was only a requirement of judicially decided not one that you had to seek judicial review previously and again if you were to interpret the language otherwise if you were in turn to interpret the review provisions or the jurisdictional limiting provisions of a to c of a five as limiting the seven reviews then it would mean that no challenge under b seven could ever be brought because again the language of a five for instance is so broad as to exclude any challenge it for review is to be included is to include collateral challenges and as a final matter if there was further any question over this issue there is the doctrine of constitutional the hoyts if we are to limited preclude a an alien from seeking to bring a challenge in a criminal case that implicates the very constitutional due is i do not think why as i've said before i think we're talking about two different animals and one thousand three hundred and twenty six of the factors you see there are really drawn from the dozer lopez which really recognize that this was a due process claim and that circumstance that was before the statute even allowed for challenging to be illegal but illegal reentry context and this was developed as a matter of due process so those limitations reflected due process requirements to actually even get it review in the st instance that is not applicable in in the b seven context but will because what we're talking here is just a creation of congress itself congress granted opportunity for review in this particular circumstance and to get to the underlying question and what is the standard to be applied will that be seven does not itself state a generally applicable standard but i think in this circumstance the statute is best read as directing and requiring the district court to apply essentially the same standards that would be applied by a circuit court this court on a petition for review of the order for moveable and i say that per few reasons one is that nothing in the statute nothing in one thousand two hundred and fifty two dollars is inconsistent or suggest that another standard should apply and in fact there is every reason to think that those standards should apply because basically they apply in the same provision be seven applies and subsection b and they  provisions that generally apply in this circumstance apply and be for so the mere proximity to those provisions suggest maybe those standards should apply nd if you look at the subsection b seven b congress did actually specify a standard of review for one particular type of claim and that's a nationality claim and nationality claims are generally subject to a bit of a different and distinct standard or review on a petition for recruit and then be seven be congress in this case said if a challenge is brought  como pick that off the table i think i would concede that for these purposes your honor i think if we were going to go back i would and i'm not sure what would happen at that but at the for these purposes i can see that the ineffectiveness claim is really what we're talking about now go back to  the st part of my nd part was let's assume those factors don't apply can you clear los altos prejudiced requirement on remand i believe so your honor i think we had and there were three separate aspects to the ineffectiveness claim actually that was going to be brought before the blow that wasn't actually addressed of course and the three aspect this was a convention against torture claim and which the alien the defendant in this case mr doe who was claiming that if he was returned to be named he would face torture and that would be subject to that at the acquiescence or with the approval of the government so there are three aspects to the claim one was that his attorney in the initial proceeding did not fail fundamentally to present evidence of acquiescence from and continue they are fundamentally for to present expert acting as a group of evidence of acquiescence to fail to present evidence of mr dunn who serious serious medical condition his heart arrhythmia which really require treatment and could be relevant in terms of his treatment back at home and three and i think this is most to your point perhaps your honor is that there was a rd aspect of the crime which is mr de whose attorney improperly advised him on his right to appeal or whether he should waive his right to appeal and in fact the allegation was that mr dunn who was in fact advised improperly to waive his right to appeal and that is why he was precluded thereafter from seeking review in the court of appeals and that gets back to some of the original questions where even if you do import improperly in my mind if you import requirements that there must be some meaningful reproof preclusion of the right to seek judicial review previously that exists here at least on a prime a patient matter so we have that as a factual matter so i think we do get it and then that would clearly establish prejudice for these purposes in terms of rendering the whole proceeding fundamentally unfair within the meaning that has has been adopted by this court and others in terms of assessing final point to be seven the states that during the pendency of the criminal proceeding no petition for review may be filed and that makes sense if congress expected that the district court would be aligned that case with their ship or concerts would indicate that those are separate concepts i thought well i think that i think what it indicates actually is that congress expected the district court to apply the same standards of her view that the court of appeals would because in that context you don't want to court the same time applying the same standard my name is michelle i represent the united states of america in this matter right as the district court in this case followed the plain language of the statute and correctly found that it did distinguish or for close its application here where there seems to be an analogy on on the do on the due process side the requirement that there be some opportunity to  certain class of aliens that have committed aggravated felonies you are this is the way that this law provides for you to appeal an immigration judge this decision or you can take that decision to the board of immigration appeals and to the court of appeals specifically skipping over a district court there is a specific intent in the way that the law is written in this case mr newdow who had a private attorney acas hearing there's no indication other than perhaps now mr dunn who can say i was unlawfully advised to waive my right of appeal but it wasn't just that he didn't avail himself prohibits him from becoming being part of the purview of the seven because when you look at the actual law the language of the law under the seven it's a super indicates that we don't even look at these nine provisions stripping provision i had a reaches quote which the collateral challenges to a criminal charge close quote that would give rise to quote serious constitutional concerns and your honor i also aggravated felony therefore he falls under age to see how and congress kind of provided a collateral attack for others who are facing removal for other reasons other than having been twenty six i'm the ability to to attack and underline deportation water in that context of the illegal entry but that's not what we're dealing with here we have a clear congressional intent on on how the courts and  the issue as i understand it here is if a removal order is invalid by virtue in this case of being the person being a victim of ineffective assistance of counsel can then serve as the basis for the crime of failing to depart other words if the underlying basis doesn't exist if somehow it's called into question how can you then say you failed to depart when in fact the order that you failed that was entered causing you to depart turns out to be perhaps the  self of the opportunity he could have gone d to the board of immigration appeals and and i don't i'm not quite sure that the attack on this final order is on the validity of the order so much as it is we kind of want to go back and we do because my attorney did this now if there if there was obviously not before if there were to be ineffective assistance of counsel found and the remove order was you know fact erased and you have to go back to wherever and whenever you have to do in order to resurrect it if you can then isn't the basis for the failure to depart missing then where does that leave you in connection with the failure to depart conviction well in terms of the criminal conviction in this case i think it but a i just thought i would agree i would disagree that the united states proceeded on an invalid final whatever noble in the criminal prosecution i believe that mr doe still would have if he was still in this country however he has been removed from the country and perhaps at this point would be time barred from the most need to be open but the post conviction there could be routes to go back to the immigration court and my question for you is assume that all of those issues are not before us and that assume that  ineffective assistance of counsel claim is made and if it is successful what happens to the criminal conviction for failure to par involuntary i would respectfully disagree with that doctor's claim that that is his claim but he's making the claim in the wrong court at the wrong time using the wrong law that would be the government's position because the statute clearly provided him with a will to pursue to make that claim there has been no judge has made a decision about the validity of the order never got to that point on review and his argument is it never got to that point interview because of a constitutional  and not to a specified a congressional specify class of criminal aliens who congress has specifically promulgated a work for them to to follow if they feel great if they feel that they have been afforded less than  counsel at the immigration judge level they could could happen as this process was playing out before the final order became a final order he had time periods with which with within which he could have raised that that there's a  d here sometimes someone gets a conviction and didn't have counsel or had counsel didn't meet any kind of constitutional standard say there was an appointment counsel in that sentence was such that there was a right to put him in a counsel and then that's that conviction is used to hit someone sentence later the supreme court's dictate say you know it's not you have to go back and file a petition the original one you can attack in your current criminal case the use of an un counsel prior conviction to enhance your sentence isn't that the analog here that due process th amendment concerns dr recognizing that the forum you litigate this in is the sentencing in the current case is the only thing that you think makes this different the existence of this statute on the books that you think is supposed to be channeling it back because again that's a situation where you're doing it later based on the conviction that in theory you could have raised this claim earlier on but proceeding well i think that i am your honor because i think the text is an ambiguous a to c is clear as is as is b seven with the initial sentence indicating that this section applies to a one final additional element of prejudice such that the outcome would have been different i believe that if this case were to be sent back the question would be ineffective assistance of counsel and the the district court would would most likely be required to address that issue in a suit in similar fashion that that the process was so procedurally flawed as such that there was prejudice and because of that prejudice the outcome would have been different but i will say that mr goh who had a full hearing in front of the immigration judge where he testified witnesses testified and he was represented by private coun there are i think there are two broad points i'd like to point out because i think there might be a lack of clarity is coming from the other presentation of my colleagues one is that there was clearly jurisdiction at the initial stage d over this case that is under  and thirty one which grants district court jurisdiction over offenses against the laws of the united states and all claims and defenses arising there are so there was jurisdiction to start up with there was also authority under subsection b seven to file a motion to challenge the removal order in this case there is no doubt about that it refers to any criminal proceeding charging a violation of one thousand two hundred and fifty three day that is what this was therefore the statute to authorize it the only question there then is whether we can find it provision explicitly takes jurisdiction away from the criminal court in this particular context and i did not hear any argument on the other side explaining why review as used in a to c as used in a five as used in any provision in  amazing if at the one state congress granted with one hand and be seven and said that shall have authority to do so to consider these challenges and yet with the other hand using language that doesn't clearly apply takes it away that would be an extraordinary resolve nd to hold that would actually be to go contrary i think to mendoza lopez and to charles well mendoza lopez actually does make reference to this particular exemption it makes reference before getting into the  a criminal defendant whether otherwise from seeking any review that is a due process problem mendoza lopez did not make any distinction among individual defendants based on a crime and none can be drawn and finally to the extent that there is any question and i believe there  quick answers by the court that made this clear this we are not talking about the merits issue at this point in time what we have to accept is that this challenge would want to the political to of the order of removal which it clearly was and it was a challenge that can be cognizable under p seven which i