it please the court and laura came in with a federal public defender here on behalf of mr guzman in denying mr guzman's collateral attack on the diet men in this case the district court improperly limited the scope of united states versus mendoza lopez and the cases that mendoza lopez relies on in mendoza lopez stead and the cart the supreme court found that the due process ozzie for five defendants the opportunity to collaterally attack on that basis that's cracked and there was therefore error by the  requires that mr guzman have the opportunity to collaterally attack the administrative deny of his temporary protected status application just to make clear we did not and we are not proceeding under thirteen twenty six d which is the statutory remedy for challenging a deportation proceeding congress enacted thirteen twenty sixty in response to mendoza live has become and doesn't lopez the first question that the koreans had was was there a statutory remedy available to  i'm not answering the court's question is like as you please let me know but bob point is that we have a discretionary interest in the limits of due process rights or for the are set forth in that case and we have be ruling in your favor if the ruling that we have to look at the differences in the types of discretionary decisions that are at issue in smith and also in wilson which the government really didn't say i am aware involve the same question the relief that was saw in smith and wilson is to try and seek relief which is an equitable form of relief essentially where once the term requirements for seven years of presidents and a few additional requirements met the court then looks at the equities and weighs them out and decides whether or not the person should get the creative relief soft there is almost no limit on the discretion that immigration judge has i should say no limit there are very few limits that the court or the immigration judge house and imposing warrant a nine to twelve c release and that is very different than what we have here temporary protect could wrap yourself around that yes and so i'm sorry i don't mean to lose the court so in term the i need all the help i can get it is a complex issue and so in smith think of this the court and smith clearly distinguished the that proposition and smith that was being discussed as whether or administrative proceeding is used as an element for criminal convictions that sets aside the question and makes me different than what was considering and that's because administrative proceedings do not have the same level of protections that are granted under the constitution to criminal proceedings just in case it comes up to get back to judge court of arms when in terms of the discretion once you are system and in that case this court found that although there is an element of discretion in the sense that you know what benefits are to be granted is sort of discretionary once a member of that retirement system is eligible deemed eligible then that limits of discretion and that's the situation we have in this case twelve fifty four eight sets out the requirements for entitlement which is the residence and the residency requirements in the presence requirements which as the party stipulated mr hughes mine had met and so going back to mendoza lopez when we look at the holding of and there is a little because and the cases that relied on it talked about a broader due process requirement in a criminal context to challenge an administrative decision use the phrase is administrative proceeding and ministry of order and administrative determination at least eight times  the majority opinion the government had earlier proceedings in its priest in the case and the district court characterized mendoza lopez as strictly limited to deportation proceedings and i submit that that is not the case  request her from her and formation and that caused us c i s to deem him improperly ineligible when in fact all of the information that was needed was in his immigration file already the essential element that  to is the deportation of thirteen twenty six tell me what was fundamentally unfair what was fundamentally unfair is that he was denied he was entirely deemed an eligible for temporary protected status yes so what's unfair in the process so what is unfair in the process is that his attorney there is evidence in the record and both parties stipulated that the emigration that evidence existed that would deem him eligible attorney any attorney of any worth would have responded to that two thousand and three letter with the evidence that clearly exists in the universe of information because it was we know it was there we know yes even before you get to the problem with your router and he's not challenging removal right he's not challenging the removal because in this case essential element is removal right and that requires two findings one that there was a deportation proceeding and then to a physical removal so we're not challenging the fact that a deportation proceeding happened and that an order  are challenging not everything we were made in the country after the unchallenged rule he did and so from two thousand until two thousand and seven was he was removed he remained in the country and so what the piece of our argument is is that had he been granted temporary protected status that would give him a bar to removal but it was under the statute it would have given it would have given him exactly what it's a temporary protected status correct and so what we're looking at is a timeline that is fixed in this case we have the removal that happened in two thousand and seven and so in two thousand and seven is when he was removed but for that removal which he did the court could not he would not be able to be prosecuted in district court under thirteen twenty six but for that physical removal right and so it's only the physical removal aspect of that element that we are this whole argument relates to ok you know i got that i hear you but i i come back to my question about what was the fundamental a very and so the fundamental unfairness your honor is his attorney's malfeasance in ins submitting the materials incorrectly he does have a right to have adequate representation not on the government's time under the sixth this is the fifth amendment due process right to have his application fairly considered so you're saying the government should have been required to go be on the submission that he may to review the entire information well what i'm what i'm arguing your honor is that his attorney first should have submitted that information because it would be a government role and so but the government  when he when because that information was that the attorney did not respond i see my time is up do you want me to finish you know i think you can listen to what the governor has to say and then respond here and it sort of be thinking about i mean i think you know like you sh may please the court my goal as always this morning rogers is to try to be as helpful as possible and the way i think i can do that is to try to pray the argument here in terms of doctrinal first principles because i think once the structure of the doctrine is clear the fatal barriers facing the defendants argument are also clear so a very dangerous crystal here's dictionary i was actually going to start with mendoza lopez your honor because i think that's a way into the going to criminally prosecuted for something based on something that happened in an administrative proceeding there has to be some kind of review of attendance to due process principles in the proceeding congress in an annex thirteen the way the defendant has framed this argument which is that there is a due process right outside of thirteen twenty six d review cannot possibly be correct the government is not prosecuting this defendant for the crime being present me perhaps phrase it a little bit differently ok i am not aware of any case that has said that the three factor review with thirteen twenty six d doesn't cover the field for purposes of the concerns of mendoza  w so i think properly framed the defendant's argument has to change i being prosecuted for being removed and then remembering i should have been able to raise my t p s status as a  proceedings and my inability to do that violated due process and i think once the argument is framed that way there are two ways that the court could go from the most aggressive way would be to say you have no right to raise wh sixty altogether judgments what i was attempting to say is that the court could hold as a matter of due process straight up purely under mendoza lopez they did hold that there is no right to raise a discretionary form of that there is jurisdiction here just for purposes then you can go back if you think it's critical to your case here just say there's no jurisdiction proceed if you think you can win with out saying there's no jurisdiction there percy and i number of factors including exhaustion of administrator middies and judicial review and in the government's view the defendant was not denied any of those and disha due process here so explain why  first the defendant had a right to appeal the denial from us yes there is an administrative mechanism it goes to something called the administrative appeal when you get with the department of justice that option was available it was not taken am then in two thousand and seven the defendant is held in ice custody for six weeks before he is ultimately proved he point while he's being held in ice custody she could have filed a motion to reopen with the initial immigration judge from the two thousand proceeding on the grounds that i ought to have been accorded t p s status and i was not such motion if i were you familiar with the  exhaustion of administrative brody's because courts typically say that if you have exhausted your administrative remedies and you have been not been denied some fair process to which you are entitled and so johnson in discussing the various remedies  i was simply trying to make that point that there was no denial of due process insofar as he had an opportunity multiple avenues to raise the t p s issue and he did not over the course of litigating this case defense counsel has argue that those were not real ministry of avenues for relief or did not provide an actual mechanism for judicial review because there is typically a ninety day deadline to reopen an immigration proceeding and that has long pas this court has recognized that any immigration proceedings principles of equitable tolling apply including principles of equitable tolling based on ineffective assistance of counsel the court has said that in lawrence against lynch and cuss he gets holder so at any point the defendant well past the ninety day deadline as a matter of due process who filed something with the initial immigration judge that said i didn't realize until now that my t to the notion of what happens in a due process case when to and it simply has not raised to the right that he then attempts to raise later because that's essentially what happened in this case there was no attempt between two thousand and four and two thousand  for this defendant to seek further review of his t p s suffocation and he never raised the issue when he was home custody in two thousand i think mendoza lopez is very instructive on the us because the dissent in mendoza lopez spends a good deal of energy on a case called lewis where the supreme court said it doesn't matter if there was some sort of constitutional infirmity in a prior conviction a felon in possession conviction can kill  which is i think what i heard my colleagues on the other side say the lectern the moments before it stood up that's true then the due process analysis has to be in the period between two thousand and four and two thousand and seven read to night process that was due to circumstances where the court can consider the question of whether the immigration authorities acted improperly by denying t p s but there has to be some other jurisdictional book and this gets back to the colloquy that i was having with judge duncan here jurisdictional hook has to be that an element of the crime is removal he's trying to collaterally attack that the way he's trying to collaterally attack that is to say i was denied the ability to raise t p s as a defense and in the government's view he simply are two additional followup points about whether this defendant was in fact denied any due process at all the first is there is judicial review available on the supreme court has held twice most recently in the modoc case that parties talking past each other at the district court talking to the defense counsel argument it can be hard to figure out what's actually at stake but i think your honour's exactly right what has to be at stake is the removal and then the due process question is were you denied the ability to raise the t removal context and the answer has to be no based on the facts we have here oh what is one additional point if a court correctly stated i think a moment ago that you know effective assistance as they do process issue doesn't really appear in my friend on the other side's brief so far as the court wants to consider it i wanted to take a moment to zero in on the nature of that doctrine because it's important to distinguish two sides of this court has held in a published opinion it was later vacated not revisit that there is no sixth amendment style due process right to counsel immigration proceedings the be a itself in a number of published opinions has recognized standard of ineffective assistance puts the burden on the detainee to make a showing an affirmative showing throughout the davids or other proof that counsel was ineffective so even if we view this through did the i said won't you seem to have moved away from that i just don't see it as a statement i simply wanted to make that this fundamental point which is there is no proof at all to the extent that the district court to raise the denial of his t p s outlook ation in the context of his removal proceedings and did not either exhaust his administrative remedies or was in any way to die the arching for judicial review his removal proceedings were deny the district court jurisdiction to hear the challenge and that section as this court has already held in leave versus u s citizenship and immigration services applies only in the context of removal proceedings and want to e that this fact here is the only one of its kind that i have ever seen or heard of in the many immigration attorneys that i discussed this argument with in preparing the original motion t p s temporary protected status is the only relief that am aware of an immigration court that can that can arise after the person has entered the country all other forms have to be either raised after i'm sorry after the person has already had a remov removal order has been entered every other form of relief must be relate raised in the removal proceeding or the factual grounds had to have arisen before the removal proceeding and so when we're talking about this case it is not a common or even remotely common situation because we have a situation here where the the defense the affirmative defense for a move all arose after the deportation proceeding itself and so when we talk about the government's arguments about the jurisdiction that twenty two thousand fifty two a two d which does provide this court an only this court courts of appeals jurisdiction to hear an appeal of a denial of temporary protected status it has to happen in the context of removal proceedings this court has already held that that there was an i don't think i highlighted it in the statement of issues but it's certainly in the brief and it's certainly in the reply brief that if the court finds that exhaustion of remedies is something that mr guzman would have to demonstrate that that was excused by his in effect in this instance of counsel and that is that's an important question that i wanted to address because in you know you are seeing some assistance from the council well the consulate assistance is simply just to allow him to make a call to the consulate and so it is not when what happened in this case is the removal proceeding the only removal proceeding that happened was in two thousand was the result of that was there was a warrant that was outstanding for mr guzman based on the order of removal the only thing that happened in two thousand and seven was the execution of that morning there was no further there is not a reopening of the removal proceedings there were no further removal proceedings it was simply just the execution of the war and two thousand and seven so to the extent that you say he had no opportunity to facts that we have here because in that situation there was a board not a court but a board that was determining whether or not certain persons could get exemptions for military service and just like the temporary status application they had