good morning your honour's may it please the court chrissie hears from federal defenders on behalf of mr martinez the i j a violated mr martinez is due process rights by failing to meaningfully advise him that he was eligible for voluntary departure the idea  didn't explain the benefits of the consequences of voluntary departure and instead made it sound like voluntary departure was just a delay in being deported and this water advisable prejudiced mr martinez because even though he didn't have substantial positive equities his negative act his negative equities were minimal when considered in context and given that voluntary departure is a minimal form of relief it's plausible that an i j balancing his equities would have granted mr martinez voluntary departure well he had some your honor he had lived here about a year and a half he had a work history he worked at a restaurant in construction and he had no prior convictions and i think there's a couple things that we should keep in mind when looking at his equities one of those is that he was twenty years old at the time of this hearing before the i j a that's not a lot of time to accrue a lot of the positive equities that we sometimes see such as a long work history here or a citizen wife and children he's only been here a few years and he was only twenty years old and so the work history that he had a honor but that's acclamation was signed under penalty of perjury and so i think the district court accepted it because she took that into account when balancing when balancing the equities something also to keep in mind when when considering th mr martinez didn't have a lot of negative equities and so when we do the balance it really is of the discretionary grant and so it is a balance and so when someone doesn't have a lot of negative equities they need fewer positive equities to balance them out here has negative equity is where that he had ten prior ketcham releases which which the district court thought was significant but again looking at it in context the immigration service never thought those were significant enough to place him in removal proceedings before all they did was remove him back to mexico from the united states across the border it was just his statement in which we've challenged i think the government submitted the audiotapes of this court it's hard to make out the district court did make a finding that he admitted that he had smuggled immigrants on a raft we've challenge that is clearly erroneous this court can listen to the tape the district court herself said she had no special expects parties and listening to disputed audiotapes but i think some important to consider is that the immigration judge didn't mark that allegation as admitted and he didn't mark the  alien smuggling ground over movability a sustained and so something just something to consider when looking at those equities is that the immigration judge i think didn't view them as a substantial what's the most factually analogous case that you can support in your in your favor on these equities well i think there's two cases we don't have one that's that's directly on all fours with this and part of that is as noted in the reply brief is the b i a just doesn't really report when grants of voluntary departure are given and then upheld on appeal there were twenty seven thousand grants a voluntary departure in two thousand and four and an appeal where  of the i a up held a grant a voluntary departure under the similar circumstances so that i think is evidence that it wouldn't been plausible that i j would have granted voluntary departure something else to keep in mind is that voluntary departure is similar to a voluntary return in which mr martinez had been granted ten times in the past and so it would have been an incremental increase for the i j a here to grant voluntary departure before imposing a formal order of removal on mr martinez this would have been sort of the next step in his he never before been before an immigration judge this was his first time i'd like to just make a few points on the the advise almost your honor has more questions on projects i'm happy to answer th convey the benefits and the consequences here he said i have the authority to grant you relief which if granted would allow you to stay in the united states legally but not to exceed one hundred twenty days and then instead of getting deported you would have to depart the united states by yourself that's not an accurate description of voluntary departure it sounds like you can stay here but at the most four months and then instead of getting deported you have to depart the united states by yourself this is focusing on the physical act of deportation leaving the united states but there's also a legal act involved in deportation and that's the order of removal the formal order from will that's entered against you and if you don't have a formal order or move on turn against you like when you receive voluntary departure the process of legally returning in the future is much easier and the a here didn't convey that to mr martinez he focused on the physical act of how you leave you either leave pain for yourself or we the united states can remove you and to someone in mr martinez his position he was twenty years old he was pro se he had a ninth grade education that really doesn't convey the benefit here so it didn't give him a meaningful advisable and a meaningful opportunity to apply for that relief someone in his position would think why would i why would i apply for this that doesn't really give me any benefit deportation correct so post inclusion voluntary departure is what we see all the time because we've seen the i j a opinion right so so this is the kind of thing we don't see correct this comes up less frequently morning honors may please the court joseph who are born on behalf of the united states for this matter it was implausible that a person with the extensive immigration violations that this defendant had would receive voluntary departure as a going through this process with ten millions at the same time he wasn't even talking about individual equities with them or with with regard to mr march in his individual hearing he did go through those equities i would submit that the questioning that the i had with mr martino explored those positive equities the ones that articulated in for example whether he had close family ties in the united states whether he had a long history of residence in the united states or whether there were any of those type of humanitarian needs like whether he had family here as such that you know would tear the family apart those kinds of considerations that would be taken into account he was asked the question about whether or not he had a parent a spouse or a child living in the united states he answered no to those questions he was also asked when the first time it was that he came to the united states to try to ascertain whether or not he had been living here a long time and his response was that he came here in two thousand and five his immigration hearing was in two thousand and six so at most he may have been residing in the united states according to his own admission within a year period of time countervailing that with the other side he miss robinson was asked what the history was the negative equities and she did articulate that he was apprehended on this instan prejudice no i contend that there's there was no due process violation but the court doesn't need to even reach that because i don't think that there is prejudice that he has met his burden to show prejudice in the first place with regard to the due process violation the reason i hearing also conceded it during oral argument that he was technically advised what voluntary departure meant and so he did receive that advise all and the immigration judge did what would be akin to an oral application  departure he asked all of the key questions that needed to be asked of mr martinez to determine whether or not the positive factors outweigh the negative factors in this situation you know and the circumstances surrounding his prior and i'm reading from the top of this from this document it's noted then an alert was placed into ident immigration system in october of two thousand and five saying that mr martinez was believed to be an alien smuggler that smuggle illegal aliens into the united states on foot if you look at the the other two thirteen's that were placed in the record mr martinez received apprehensions three in august of two thousand and five four in september of two thousand and five one in october of two thousand and five by my calculation that's eight so by the time he was apprehended the eighth time they had entered into ident a notification that he had been suspected of smuggling aliens he was apprehended two more times once in december of two thousand and five and once in february two thousand and six so just within a six month period mr martinez had been abrogated handed by the immigration service and given voluntary return by the time he reache immigration hearing so but when he was given voluntary return you're talking about this isn't even this isn't reached i j a this is the sers just let him go is that what it is that's correct they document his apprehension they fingerprint him as is documented in the voluntary departure he has a certain time period to depart on his own they actually do release him into the united states it's appropriate in situations where they're somebody has a long residency or history in the united states as you see in some of the cases they've been here twenty years they have family there to get their things in order they do have the opportunity to depart on their own and then have an opportunity to reapply for admission that having that deportation order in place and so it is it is different a voluntary they are documented so that's how they know that there were ten or eleven that he's fingerprinted he's after he handed in there is actually a report that is also generated and you'll see those reports documented in the se rs as they are twenty seven twenty eight all the way through criminal convictions he had no prior criminal convictions although he did have he was engaged in criminal conduct which was one of the negative factors that was considered i know they say they they charged him with that and you know i read the transcript w amount of apprehensions that he had it was clear that he was admitting to leading the aliens into the in the nine allens into the united states and wrapping them across the canal in fact in the report that i just cited to your honor the april fourteenth report there were two of the aliens that that in particular in making in making the admission itself i think it aggravates the situation to a degree because he's not an individual that was just part of the group he rafted them across a very dangerous canal i know your honour's have seen cases where people are smuggled across the all american corral canal it's very dangerous people have drowned i haven't seen cases people being roughed over in the united states verses of all as of all it was a very similar situation to this case where that individual was part of a group that was smuggled across the canal and in that case the i j a actually told mysteries of all that he should do that that it's extremely dangerous that people have died there that people have drowned there so that's an example of a case that this court where is  it has groundwater from mexico that fills into the canal groundwater from the united states waste water that falls into the canal the just the terrain within the canal itself makes it very dangerous at times they overload the rafts like in this case that he rafted them across the put nine people into a small raft there's no discerning whether or not those aliens could swim or not it when they're placed into those raft there are no life preservers and other things that you would expect if you were going sea worthy and expected to be safe and then they take them across that canal so it's extremely dangerous in that area i see that almost at a time i do think that the negative equities here far outweigh the positive equities even mr martinez his eighteen month residency that he claimed in his declaration there is no case that was cited that says that that's a lengthy residency in the united states in fact the cases that are cited show that the residency is more five to eight to fifteen to twenty one years in the united states these are small children who are being brought to the united states who live here a very very long time mr martinez didn't have his parents living here they were citizens and nationals in mexico they did not cross into the united states  and i don't think that a dating relationship alone is really something that should be considered a close family tie that would warrant having this policy equities outweigh the negative on that i would submit thank you very much  brooke two quick points your honour's the first is judge more laws questions about voluntary removal versus voluntary departure in the physical act your honor referred to it as being deported i think that underscores why this mis advisor was so confusing to someone in mr martinez's position because i j equated departing the united states and deporting and being deported and didn't make it clear to mr martinez that there's a difference in being physically deported and having a legal order of deportation against you which voluntary departure would have done away with so that's the exact reason why someone who was twenty years old and pro se and had a ninth grade education would have been confused by this advisable and wouldn't have understand that there was a benefit to it to voluntary departure and then would have prove time about a year prior to this but again the immigration service never considered those serious enough to ever put him in in any type of formal remove a proceeding and they kept sending him back across the border it's what we call in our district catch and release they catch someone there at the border border patrol does it there on the scene and they send the person back across the border and so these warrant i know they sound serious here it is ten but they weren't viewed as that serious by the immigration service because they just kept sending him back across the border has three years of supervised release my last point is just work in regards to the immigration judge asking about his equities this is it you are one seventy eight i was actually asking about adjustment of status or asylum the questions that he asked didn't go to voluntary departure he's asking if mr martinez fears being tortured or persecuted in mexico whether he has a wife parent or child with parents or permission i'm sorry with papers or permission to be here in the united states those are questions about a grant of asylum or adjustment of status those are questions about work history or any other family members or hear anything else that would have weighed in the equities of granting voluntary departure thank your hono