the district court erred when it held that he could not proceed with this so i want to start with the st two requirements and the issue in this case is that mr hernandez was never adequately informed that past the conclusion of his removal hearing which was that he retained his administrative and judicial remedies now the government in this case is not contending that mr hernandez predominate was actually aware of some administrative or judicial remedies that he failed to pursue and there also not relying on an argument that the government gave him adequate notice that his remedies extended past the hearing instead what the government has asked is that this court simply presume that aliens are always informed of their administrative and judicial remedies and that even in a case where there is no evidence to suggest that the alien actually was aware and where the immigration court did not inform him that he vermes existed that the court told him solely responsible for his failure to pursue remedies he did not know that now there are two reasons why the court can't judge failed to adequately explain to them the scope of their appellate remedies and that's that's the situation we have here as well now the nd reason why the court can't credit the government's assertion is that even if the court were inclined to accept as a general matter that eliot should be proved presumed responsible only to research this is a case with a little notice that mr hernandez perdomo did receive was actively misleading and would lead a reasonable person to conclude that he had missed his chance to exercise any kind of review and in particular i'm referring to the underlying defective notice to appear that started the immigration proceedings and that's in the record below i documentary number eighteen feet for work and there that notice to appear was divided into two sections the  titled conduct of the curia and the nd was entitled failure to appear and conduct of the hearing mr hernandez perdomo was informed at the conclusion of your hearing you have a right to appeal an adverse decision by the immigration judge but the nd section titled failure to appear did not describe any appellate rights and did not explain to him that in a case like this one or he is not at fault for his failure to appear there are certain remedies that would still be available to him that would allow him to challenge is in  removed now neither this court nor the supreme court has expressly addressed the question of how to handle misleading notice in the collateral attack on ties with the rd circuit's opinion and charles well is on point and i think this court should look to it as persuasive authority and in that case the rd circuit held that misleading notice creates a more serious a due process problem than the absence of notice because it will deter a reasonable person from actually even undertaking an independent investigation to see if there are remedies that are still available to them and then in charles well as here the notice wasn't technically accurate but the emissions in the notice would lead a reasonable person to believe that they had missed their chance and the rd circuit found in that case we're not going to require them to undertake an investigation that's already been discouraged by the materials that the immigration court sent out to them so i want to turn around and say what i don't but had not had here let's end it significant there that to the court's determination and charles blow out that there was an act of misrepresentation so your honor in charles well like here there was an affirmative representation which was correct and i think and charles well it was that you can take this up with the an affirmative misrepresentation like there was in charles well your honor in charles well there was no affirmative misstatement was similarly in a mission that you and charles well there wasn't any knowledge meant that you could pursue judicial remedies and so both cases involv was instituted could you still filed a motion to reopen right your honor i think under this court's case law the answer is no and the government cites a decision of this court cordova sotto where this court held that the illegal be illegally reenter the country and so i think by the time this case was instituted mr hernandez perdomo had already lost the right to pursue a motion to reopen other government does cite to a th circuit case where they've carved out a limited exception  as well as that the language of one thousand two hundred and thirty one a five which says relief under the subsection is not available after the attorney general has determined that a person illegally reentered mean it means that he lost his right to file the motion to reopen before this case began and also before he gained any knowledge that the motion to reopen existed would he have been entitled to any relief in his immigration proceeding other than a question of the notice to appear so your honor have you been aware of the motion to that the motion the order of removal would have been rescinded and at that point you know the government could have decided to continue and to and to reopen the proceedings and they could have just given him another notice to appear with the date and correct that's right your honor the government could have made the determination that it wanted to continue to pursue his i think the difference between i think there's an open question what would have happened in that case and in this case promote simply hasn't been given an opportunity to have a hearing where he could put on arguments put on evidence put on witnesses that would establish his ultimate eligibility to remain in the country and his prejudice is that he was denied the opportunity to have that hearing that remained available to the defendant in this case the law provides that where as here a defendant was ordered removed and essential he or she can move to reopen those proceedings at any time if he did not receive the notice or was a federal or state custody at the time of it and censure of proceedings took place and that remained persisted for quite a long period of time even according to the argument the defense counsel has made today that persisted for the entirety of the period after the removal order all the way through the period that the defendant was removed that's a mexican from the united states he could have moved to reopen from there it even persisted after his illegal reentry into the interests windus that  wrong when he said he couldn't really open now your honor i at a minimum i think everyone agrees here that it would have been available up until at least the point of indictment which in this case was seven plus years which is far more than the minimum the th circuit has said would be required in a read of campos the court made clear that thirty nine dollars days alone would have been sufficient for a defendant to discover the right to reopen even if he had not been informed of it and to take advantage of that and read a campus also cited approvingly to another case out of the th circuit which said that eight days would have been sufficient so the very lengthy passage of time in this case defeats any argument that there was insufficient there there was an insufficient opportunity for the defendant to learn about this right and then to take advantage of it and i'd also like to make the point that the th circuit law is clear that there is no requirement that the government put the defendant on notice of this particular remedy and we've cited several cases that are squarely on point and i refer the court to demen ski in which the circuit said that immigration law as well as tax law and criminal law knowledge of the t i believe is that correct believe that is correct and i only meant what i see was that there was at a minimum a very limited amount of disagreement here between the parties and that the intervening seven plus years meets all of the criteria that would be required for the court to find that there was ample opportunity for the defendant to take advantage of the remedy and i would further add that there have been no cases cited by the defense here that say that there is such a requirement that the government provide notice under these circumstances and in fact the case law that the defense relies on deals i think exclusively with situations in which there were unknowing or unintelligent waivers of rights to appeal which is quite a different circumstance then the right to reopen which was not waived in any way it persisted after the end of censure removal proceedings and persisted after the defendant was deported and they rely on the charles well case which was not was either cited i believe in the district court and this was not an argument that was actually made before the district court but there are several ways in which charles well is distinguishable from the domo there was no reinstatement order which is the order that's at issue in charles well and so any particular findings as that language is or is not relevant as to the argument by analogy that the language in the notice to appear was somehow misleading or confusing it is the government's position that it absolutely was not that language is neither misleading nor ambiguous it simply says that at the conclusion of your removal proceedings assuming an adverse decision you think it states what is absolutely true that that appeal right kicks in at the conclusion of that hearing it doesn't place any limitations on that it's that say that it only exists at that period of time and i think a reasonable reading of that sentence is consistent with the fact that you simply have a right to appeal after your implication hearing has been concluded further there is no suggestion in this case that the defendant actually was misled by the language a there has never been an argument here or in the district court below that there was any confusion as to that that it affected his decision making in any way and finally i would also point out the fact that in charles well there was not a court's decision there was on the passage of time between the removal proceedings and the subsequent criminal prosecution and as the court pointed out to defendant there never filed a motion to reopen not within ninety days or ten years or even after his arrest and that failure to exhaust where again there was no waiver there was no limitation did not excuse exhaust