they say even though these weren't crimes of violence they are to their of theft offenses and so tell me why tell me what we do with that argument is there a i think the way they govern is conceptualized their argument is that my foul and i think that essentially what's the harm let's put aside for a second because i want to hear you on this let's assume that section two eleven violations are categorically generic threat theft offenses use for purposes of my question cases deal with this situation where the crime charged would make you removable but the government has cited the wrong subsection and so we don't you know have a case that you know have a case of i  the client was not removable i yes but here that the difference there is that we can't on review of administrative orders substitute reasons for the substitute reasons that that the administrative agency for g if your clients had simply gone to mexico and protested their removal order collaterally later we were said we're not going to let you do it it's only because they reenter and were a charged with illegal reentry that they get the right to attack their their water and what thirteen twenty six d says if you get the right to attack it but you've got to show prejudice or due process violations it's just not enough that it was wrong so i'm still back to why they didn't let me go to my i think my best emotion case which is i think this court's very sensitive and you know show henri paul and i understand those differences but let me just point you why there it's a very similar case in that case the client was removed charges that this crime makes you removable and cited the wrong subsection the government said by now he's removable for other reasons and the court said that's fine go back and do it right but here the question is is is what the government did treats a challenge says you've got to do a bunch of things if you want to prevent her from twenty six day the last thing is you've got to demonstrate to the district court that there are that there's a reasonable moveable you don't contest the remove ability of your clients well i do we never did and they never did then the words they didn't say in the initial hearing wait a minute were not mexican wait a minute we didn't across without inspection those defenses have all been waived long ago the question is whether or not they're categorically eligible for discretionary relief and so don't you have some burden of showing at least there's a plausible case it there  status forget about it for a movement doesn't there's a chance to say that even when you get past that you're entitled to your entitle to vacate the order of removal even if you have no basis for being able to stay in the country so if i didn't finish the rest this issue you know i disagree so you think if you think of it you are if you think your case turns on a cho holding that whether or not there equities the perp when it was that the person could remain in the country is completely irrelevant i don't that's what i chose as well does not try to run hard saying parra at the very end of it he says i found all these the same deficiencies you think exist but the question remains and that's whether or not he could show any equities to stay in show that you might have gotten discretionary relief had the had the other process worked because that's really your argument you're just let me finish it you know you can over time in after your argument in this case is that it isn't that my clients weren't removeable they should they never argued they were removed your argument in this case has to be had they not been removed in this process by a faulty order they would have somehow had a chance of getting discretionary relief that's the only way they get to stay in the country let me finish i know he wants to so my question is don't you have to at least make some sure if you are entitle to know i think if i your chance to look at it when you sit down and maybe you can address my rebuttal because that case seems to say that in that case the defendant lost convicted of second degree robbery and after that not exactly what we're looking at here no because that is what the court is saying in that case and i am going to discuss it in my brief and i want your honor to that is that the client the issue of appeal was that second rule or he was unquestionably removeable on because that's the only prejudice you could have suffered by the summary the summary hearing where you couldn't seek discretionary relief because the immigration officer found him ineligible for it so why isn't it exactly the same case tired and i agree we help you but we'll give you a minute for a vote on thank you council we understand your position the court daniels if i may have united states your honor to successfully dismiss an indictment under thirteen twenty six the defendant has to show prejudice has to show that he can't be prosecuted for illegally right re entering the country after removal because it's at least plausible that he would not have been removed in the first place or should not have been removed in the first place whether but nobody ever got to that last part right the district court didn't say you lose because you haven't shown possibility the district court said you lose because i happen to agree with the notice of removal section two eleven was and was a crime of violence not exactly your honor what the district court said is you haven't shown plausibility because you're an aggravated felon can see that that we can see that's not a crime of violence and ok ok ok we're together ok now the question is you say you really really doesn't matter because if it's not a crime of violence it's a generic  it's the washington robbery case and the notice says what the notice said issues that is being attacked says what that case is on all fours with this one ok i'm sorry that's what that's w more i suppose more generally why should we address that issue in the first instance since the district court never did why shouldn't we send it back to district court and say ok you were wrong the basis on which you decided this was wrong the government says this is a generic offense if they're right then then these two gentlemen lose you decide that issue your honor i do believe in at least one of the two cases the court did reach the theft not in martinez but in the other one i believe thought ok i can look at it so but ultimately it's a purely legal question and it's one that this court has already decided as recently as a few months ago and an unpublished decision i know that's the problem but it's also rejected that argument this court has addressed and rejected the argument in an unpublished decision and alvarado penned yet more generally this court compared identical language in the washington state language statute to the generic definition of theft and wrong one when i was looking to see if the district court had addressed it but go find it to describe so in addition to the sort of binding precedent from this  absolutely right in that case for a couple different reasons first the idea that the asportation aspect of robbery takes it outside of the generic theft offense is not consistent with this court's case law that receipt of stolen property is itself a theft offense the court and corona sanchez define the idea of a theft offense broadly beyond the generic common law idea of theft or larceny the definition here is a theft offense including a receipt of stolen property so the idea that it someone who could take property in a robbery is committing enough defense that someone who receives that property down the road is committing offense and continues to continue to commit a theft offense as they hold onto that property but that sort of in between of carrying it from the place of theft to the place of receipt somehow falls outside of the broad definition is and i think is i read the so even even if the crime even if the california crime includes asportation what different was would it make it wouldn't make any difference and you know that's what the hell's in delgado they said this specifically under california law you have to have  specific intent to facilitate the commission of the entire offense so it can't be that someone has a robber jump into his car and drive them from point a to point b and he's guilty of robbery the robber have to jump into his car tell them i just robbed somebody will you help me get to a temporary place seem to say that even if you can show everything else at the end of the day you've got to show that there's a reasonable chance a plausible chance that you would have gotten discretionary relief how does and more we're here dealing now with an evidentiary hearing it a typical case that if there wasn't an aggravated felony yes that's that would be the fourth prong of thirteen thousand and sixty the defendants would have to show tick through all their equities versus their client and when they did that's a hearing in my questions or pleading matter  they have to plausibly plead that they would have been eligible for it in their thirteen twenty sixty petition do they have to plausibly plead that or is it just something we wait and get to once we finish the other stuff  i'm not sure if they would be precluded from arguing at that hearing i mean generally this would proceed they would take three to four requirements in their motion papers and then the court would decide the issue but i don't think that not addressing it in the papers we have it's not just in this case but i'm also not sure that their papers give my supposable reason for thinking that they would have had that even had they been eligible they would have had a chance of getting discretionary relief there's no allegation that of persecution torture anything like that i agree your honor and i think ultimately the court doesn't have to even reach that is you because the district court was correct in holding that this was an aggravated felony and an error and writing s retroactive we're going to read it but to say that someone who under binding ninth circuit law filed an administrative removal order for someone who is then excused from seeking administrative review of that decision excused from judicial review based on the nature of the form and then it centrally excused from any prejudice showing as long as the error appears in the charging document itself that's taking thirteen twenty sixty well farther than congress intended and in the wake of  time after the property is already been secured yourself has dot secured the property he was involved with the securing of the property nor is aiding and abetting an ongoing theft because of theft not the robbery the theft was over the moment the initial robber took the property so the getaway driver if you want to call him everyone and call him simply wasn't involved in the initial taking of the property and so i bet the crux of the problem for the government that california allowed to be guilty of robbery even if they had nothing to do with initial acquisition of the property i think to be a day that the problem to be a decision is it just mr reed california law under the under the be a decision this is get away driver must have according to the i a e a had the intent to help the initial acquisition of the property but that doesn't make any sense because by the time this is getaway driver was involved the taking already occurred so he just at best aiding and abetting the computer crime of theft which is really