criminal proceeding and that's where the misunderstanding of the lower court took place this was really an immigration proceeding not a criminal procedure but he wanted to set aside his conviction in a criminal case that's correct but you know it's still one of the ways he could have done that with t in this particular instance what really occurred we have to look at the context of what was happening in a theoretical sense it's different and when you look at the context in the context of this case you have a man who is immigration custody proceedings before there's me and there's only a medium we'll ask somebody what's what's this mean and there's obviously consequences the portaging well he knew that there would be a deportation proceeding but he was told by his attorneys he would not be they do it in the same prison so he was serving time in illinois and then he was in federal custody as that's women that's correct it was not an immigration rizzi that's correct and what happens is they keep you in the same institution and then in that institution they actually have a court room you tell him it's extremely unlikely that you'll be the border actually rather a lawyer told him that he would not be deported because he told him that his crime would not constitute an aggravated felony since he was charged under a fraud statute what happened was and this is critical to this case there are three ways that you can be found to be an aggravated felon which would cause him to be one is if he was charged under the fraud statute which is one on one in a forty th one is forgery and the third one was what happened is the government only charged him under fraud and forgery and his attorney explained to him that under the fraud in forgery statutes that create an ad evaded felony he would not be deported and that's exactly what happened he won his case in front of the immigration judge and the judge ruled he was not deportable what happened was after he was released from custody and he finished  convicted of embezzling which the government claimed was a kin to a safe statute but the first immigration judge found that if it did not qualify under an aggravated felony the second immigration judge however found that he was indeed an aggravated felony it was at that point in time that he realized that he had to do a core novas he was no longer in custody he didn't have any restrictions on freedom and it was at that point in time that he and even the judge in the district court recognized that that's why the coroner novas would have been appropriate but for the fact that he should have filed behaviors previously but there was no reason to do a havey as previously presented actually when the case will have an opportunity in about three to five months i believe the law is right now that the government can revisit on a notice to appear at any time and there's no race judicata if they find another bases for it's ninety one feds for good thirteen forty two and it does say that actually deportation consequences can be a basis for downward harsher that's a little bit different though the threat or the possibility of deportation cannot be a basis for a downward departure which is what he's looking for here well that is the mechanism but in reality he could have been sentenced to three hundred sixty four days what happened here in this case which was so unbelievable is that his attorney argued for a longer so well if you want it well if it's a district court level if you were involved in sentencing you would know that that we often was just in court judges twelve months and one day because they get to take advantage of the of the good time credits in prison to get out if you don't give them more than one year you don't get they don't get to take their prisoners you know if you can take advantage of the of the time credit not argue for the judge to give him a lesson here but it was with the sentencing guidelines to get less than we say there's a reasonable probability here that he would have gone to trial well that's the second question that you ask before and let me just address that that you need to show probability of outcome he won by ashley actually kind of suggests that you don't meet probability of outcome or do we have here we have a case where the district court recognizes that the attorney committed m comes to the conclusion that he still probably would not have gotten the relief he sought because the judge says i would have given a downward departure will two things occur there number one the judge did know that he could actually give him a lower sentence and number two if the attorney for the appellant the criminal attorney would have just sent to the u s attorney listen i need three hundred sixty four days as part of the plea agreement he would have got it so all of those things didn't occur and the judge at the district court level didn't have that information the non opposition of the assistant u s attorney that might have occurred the fact that he would have the attorney would have argued so therefore it's really not possible for district court judge to say in hindsight i would have granted that relief anyway because at the very minimum he should have a hearing on the whole issue and let oral argument take place let our brief briefs be submitted and at that point in time the judge can researched and we've come to the conclusion that he could have gotten a five k one because of his participation and the fact that he gave information to the government about what had occurred so yes it is our belief that he could have that because a criminal attorney in his ignorance of the law believed that that was not in the client's best interest in fact that's what he should have done he should have talked to the a usa and said list that because of his  this court actually struck much of the record in this case because none of this before the district court i actually are i have no idea was integration attorney told me and frankly this court has no record of what h second immigration litigations are more likely for the force of the fifth of the sixth time he was told that this conviction in the length of the fence would provide a problem to him he had all this time to file claims in the file and he didn't he decided to go down a different path and it was not until june of two