you so often that they handle them this court is privileged to have with us today when there are colleagues from the district good ok well here hansel and united states versus ram defender for the middle district of pennsylvania i represent the power rather outram with the court for missions i like yours are minutes from battle two minutes that's fine the issue that the court certified in this case was whether federal council was ineffective for not attacking in a censure the portion deportation order which was the predicate for his legal reentry conviction and part and parcel of that issue is whether or not the district court erred in not holding a hearing on the heaviest petition now i think there are three points during the course of those litigation where the federal trial counsel was ineffective ineffective meeting the meets the first test of the strickland prong of following underneath a reasonable standard of a professional do we deal with strickland before we deal with thir n twenty six well i think strickland if we're assessing whether or not federal council is ineffective i think this is the strickland standard is what we look at no i understand i'm just talking about order of how we look at the problem do we look at thirteen twenty six first or do we look at strickland i'm happy to go wherever you down in not attacking the in absentia deportation order the first and the most critical and the most obvious was when out for him was first indicted and at that point between then and  when he ultimately pled in and was sentenced attacking this deportation order collaterally was obvious both as to matter of law and as to the facts as to the law alexa search at that time would have very easily picked up cases involving collateral tax of underlying deportation orders the third circuit first enabled that in the case of us we poles in one nine hundred sixty four the supreme court's held the same thing in u s v mendoza lopez and i think need seven and then there was a second circuit case that came out just shortly actually was the day that outcome was indicted which held that very same thing w to exhaust his administrative remedies and magri with the proposition that if you don't satisfy all thirty or all three thirteen twenty six prerequisites that your ineffective assistance of counsel claim has to go by the wayside yes ok go ahead first your first requirement is exhaustion of administrative remedies that's really not an issue here the second requirement is that he has to establish the deportation proceedings deprive him of an opportunity for judicial review and here there were two avenues that federal council could have gone down the first was that in effect immigration counsel deprives meaningful judicial review and the second is that when the immigration judge and the b i a on appeal treated outruns late allegations are taking is true so i think we have to look at that in that context well since immigration council's actions you agree with this proposition i chronologically immigration council actions preceded united states versus progress yes yes ok so if that's so then what's the basis for arguing that you ineffective assistance of counsel claim satisfies the deprivation of opportunity for judicial review well because the end in effect counsel is by itself a deprivation of yeah but you're saying that now in twenty eleven based on a two thousand and three case and you're judging the actions of immigration counsel a nine d three ninety four well but we're looking but we're looking we're looking at  professional then in terms of the prejudice i think that's not correct you're you're it's not a foregone conclusion that ineffective assistance of counsel satisfies the deprivation of the opportunity for judicial review there's only there are many cases which says which say that they don't that doesn't satisfy it because i think in your papers i was aware of the present case it seems like it's distinguishable we can talk about that but also there's not a foregone conclusion charles well case says that as well what does charles well say char's well says that  oh that was a tardiness case in another context wasn't i mean it was on a petition for review but i think the the substantive holding i think should apply here as well i thought that the holding there was it's not necessarily a deprivation of the right of judicial review even when there is a monumental error and the proceeding in a person saw no reason to feel if the person merely decided not to appeal instead of being effectively precluded from appealing adverse decision i mean my understanding of charles was that it's a little different than what we're talking about here because if it did stand for that proposition then that would be your lead case with the notion that apparently we're having a different reading of that your honor i thought that the case was fairly clear on that point i could move off to a different avenue of proof and that was that that the solace said that the it was a due process violation to treat tardiness as a failure to appear and this court reach that decision based on a number of other cases in other jurisdictions the fifth circuit  pair to appear was the basis for dismissal when the alien actually was late but that was a deprivation of the opportunity for judicial review it be the case i say if it be the case that one of the problems in this case i think is that we know so few fashion as opposed to allegations if it be the case that it was precisely the kind of information that you say is lacking and it could do that both not only for mr ahmed in his dealings in federal court but also going back to mr carlin but how about the  here the dicta was was problematic for a few reasons first of all purely as dicta it's wasn't necessary for the resolution of the case  to say well there was no fundamental unfairness out for it out from didn't appear so it was the court was mistaken as a matter of fact and  distinction that based on what it had before it it made a decision independent of that so let me read specifically from the opinion so that there's no doubt for the record  the record clearly demonstrates petitioner could not meet the requirements for collateral attack on his nine hundred ninety three deportation proceedings the court will therefore reject petitioners arguments to the contrary which were also rejected invicta by the third circuit in denying his direct appeal of this conviction so the district court's not relying on that it sort of mentions it apparent that a clear and passing it independently comes to its own determination i obviously disagree with that it and the district court had no independent analysis of that point seemed only to adopt what they not a straight judge had in his report recommendation and i think there were some problems with magistrate judge ruled well that's a different point the only point i was talking about is the fact that the district court didn't rely on dictate the outcome to well to extend a didn't than it was relying on no challenge no collateral challenge to that underlying in absentia deportation order would have been successful yeah only basis for a challenge would have been through twel c i don't think so your honor i think the challenge any challenge could have attacked any one of the three requirements under thirteen twenty sixty and those are exhaustion of administrative remedies deprivation of the opportunity for judicial review and fundamental unfairness of the order and there is no dispute that he exhausted his administrative remedies but he was not deprived of his opportunity for judicial review he had that opportunity in this court there was a motion to reopen when he did not timely show for that immigration hearing that motion was denied it was appealed by mr karlan on out ra behalf to the board of immigration appeals and that appeal was denied but then outram had the opportunity to petition this court for review of the immigration orders and he chose not to do that court has to go that far euro i don't think the court has to delve into the question of whether he would have received been been granted to twelve c really think the court only needs to go so far as to ask whether the immigration judge in that the i a e a orders deprived outram of the opportunity for judicial review and i think that you dition review would occur in this court and president and that's what the allianz and other cases cited by the appellant those were brought in the context of actions in this court to review what happened in the immigration orders and  outram was not deprived of that opportunity and i don't think that really has anything to do with the question of whether he would have succeeded in a request for two twelve c really does have something to do with  the opportunity to petition this court for review of the immigration orders then at that point there could have been a determination of whether he was he was given misinformation by immigration that goes to the question of whether he was deprived of an opportunity for judicial review the opponent argues that we should have a broader definition of that the provision and  in trying to establish that broader definition they rely on prez and i'd like you to tell us why it shouldn't be expanded based on purpose well as there leave mr president twenty minutes late for a hearing and the immigration judge was still on the bench when when that came about but i think if the court broadens the definition that far what the practical effect of that will be in this case is the message that any allien at any point can say my attorney didn't tell me i could file this petition  circuit so now i should have the opportunity to do it and i think that opens up a floodgate of petitions from aliens claiming that their lawyers told them one thing or didn't tell them another and and i don't believe it's settled in th circuit that prejudice can be determined by ineffective immigration counsel the court has not broadened the definition that far and the government would urge the court not to broaden farther than it already is now that's one reason why mr ahmad federal trial counsel for mr out that's one reason why mr i'm odd an experienced immigration lawyer would realize that a collateral attack on that underlying in absentia deportation order would be futile because the order did not deprive outram of the opportunity for judicial review here but the other reason case for started the public defender mr thorton was appointed to represent mr out rahm and mr thornton ended up withdrawing his appearance because mr outram retained answer imaad because of his experience in immigration law and and i think mr model looking at the case realized and it's reflected in the record at the second at the recent unsing after booker that there was censure deportation order mr madres the specter of two twelve three twelve c relief with chief judge came and mr maag would have recognized that there were three requirements all of which had to be met and that there there was no deprivation of the opportunity for judicial review but also that the order would not be found to be fundamentally unfair this court has held that fundamental fairness has to do with procedure and in this case proceed your was followed there was no procedural due process violation and a hearing was scheduled and i would suggest that mr outram had to know that hearing was coming because he was present when he was granted bail back in august and then a week later a hearing was scheduled and mr carling says that's when he sent the first notice but the procedure was a adopted me i'm puzzled as to how much weight was properly given to what has been described by the district court as dictat citing that as an aside not not to suggest that it was binding or presidential but to note that this court had taken a look at the question of fundamental fairness and had reached the conclusion that the order was not fundamentally unfair and the reason why and this court reviews this matter on a plenary basis and needn't regard the district court's reliance on the previous panels note of that a ll this court looks at it fresh and can clearly say that the order was not fundamentally unfair because there was due process the hearing was scheduled it was held mr outram was late he was not five or ten or fifteen or twenty minutes late as we see in the cases where relief is granted by petitions for review in this court he was two hours late and it was appropriate at that time for the immigration judge to find that he was not i think there probably was your honor i think he could have gone to court staff and said i'm here i know i'm late for whatever reason and he had the opportunity was to explain that in the motion to reopen  that's filed karlin on his behalf now at that point he had the burden of demonstrating exceptional circumstances for his tardiness but as was found in review with a motion to reopen there were no exceptional circumstances he simply said i just got the notice today and i got here a soon as i could and a couple times well for locally and that's one of the few facts we know in this case that he did not appear but doing though do we have a basis in fact we're sorry  received the notice on the day of the hearing and that here rived as soon as he could i think this court can accept those facts and they were accepted below but there is a procedure that could be followed for him to pursue the end of sencha deportation order the motion to reopen was filed he could not show what was the legal standard of exceptional circumstances or unusual circumstances for his tardiness and that was all part of the proper process he appealed that to the board of immigration appeals and said the same thing i just found out that day i got there soon as i could but the b i i found that they were not exceptional circumstances there was nothing the the quality of mr carlin's representation because this court knows that mr outram had the opportunity to petition this court for review of the immigration we say his constitutional right was violent i don't think it's constitutional right was violated i don't think he had a a winning argument for two twelve c really he had the opportunities available to him that every petitioner did he simply failed to make those opportunities work for him and because he cannot meet the three requirements necessary for thirteen twenty six we i the court first has to determine was there ineffectiveness and did that ineffectiveness result in prejudice but in order to do that in this kind of case the court has to immediately go the thirteen twenty six day because that the that is the gate to that determination but you think we've got hours late and i don't i don't think that i'll think that is a trouble to this court's analysis at all because i think the real question is having gotten there late in father a motion to reopen and then an appeal to the b i a did he then take advantage of his next judicial review opportunity which was a petition for review with this court and that's where he falls down and that's why he has to fail in  of a fact that we don't have in evidence here well the fact that we have evidence to the contrary that he had competent counsel it's premised on mr carlin's advising him to file in federal court we don't know whether he did or whether he didn't and so it worse that's one more fact that could be very usefully discovered neven entry or hearing secondly with respect to the outram tuesday decision  there was something else i noted looking at it actually this morning where the court said that because he didn't appear this was not a denial of of due process it goes on to say further we note that outcome does not appear to contest the facts underlying removal order that's problematic to me because that is completely irrelevant to mr outram he was looking for a two twelve c waiver the facts underlying the removal order really i mean you have to give us something close the ball yes well first of all we do have an unreported expert witness an attorney an expert in immigration authorities who is not objected to and who be looking at and also another factor of significance is that the crimes he was going to get up were not violent crimes so based on all these factors the immigration law expert o