is a cuban national their faces imminent deportation of united states he still need affirmative miss advice from his defense counsel regarding the consequences of a federal misdemeanor conviction incorrect advice which entirely on the magistrate's failure to make a record regarding petitioners burden of proving sound reasons for delaying the petitions filing the district court abused its discretion under united out and the district court is free to review that that is shoot and that that legal issue denotes when i'm not messing your honor is is eminently correct on term terms the standard that the district he said that but he didn't decide he said that and then he went on to say the reasons that de lay was justified saying that in march of two thousand and sixteen less than a month after see even the notice retain new immigration is new with counsel to the continuance of the initial oct th hearing and hired a criminal defense attorney in march of th in august to seventeen as new immigration counsel is new defense counsel determined that attempting decision now i believe that the magistrate judge parse those two keys those things out in his opinion again it might not have been perfectly done but if you look at appendix one hundred and fourteen when the magistrate is going through and sort of outlining what he's going to discuss the group's sound reasons for delay separate and apart from latches thus separating them into two distinct categories and even highlights the report recommendation is two different categories i believe that the magistrate approached and evaluated those issues separate and apart from each other and considered the latches defense and the lack of prejudice to the government only after going through the reasons he believed that the delay in his words was justified so i believe there's a clear finding on the record that there that there was a burdett the burden of proving sound reasons for delay was satisfied question about the burden it's clear that we look at the current oldest petition and they deny all of that and for abuse of discretion but i want to ask sort of a subsidiary question about finding we not to be saying that a finding by a trial court that a petitioner is not shows sound reasons for a delay is one that we review only for a clear a do i have that right we certainly said that in the context of twenty dollars to fifty five dollars application the district court erred in granting or denying the carno of this petition i'm asking a different question i'm asking a question that goes to a fact finding if the trial judge finds as a fact that the petition did not sound show a sound reasons for the delay always a not required to review that district court's findings with regard to whether the petitioner exercise due diligence we said that in iran of the united states in two thousand and two we cited some other pay for coming out of the th circuit for that proposition except my word for it that's what we've said in twenty two by i'm asking you we haven't said that in the context of current notice my question to you is why shouldn't we review the fact finding and do diligence in carminow this for the same clear error review well then they are two interesting form of remedy and under the circumstances especially in this case that applying clear and the clear error standard is too difficult or too onerous of a standard that should be applied in this case it seems to me m the abuse of discretion standard works i don't disagree with judge pryor here your summation of the of the standards what i would what i would say is that just to follow up on the clear air if your honors to apply the clear air standard to the judge's fact finding in terms of whether or not the burden of proof of meeting sound reasons for de lay was present or not i still believe that the district court's order should be reversed based on the entire record based on the magistrate court's report and recommendation i think there was plenty in the record to show  steps that were taken him to tween more excuse me february of two thousand and sixteen until late august of two thousand and seventeen this is not a case where petitioner just sat on his rights he had not one not two not three but ultimately four lawyers that were representing him during this entire time why did we have to wait let's see even assuming we start the  delay based on the factual circumstances in this case is a sufficient enough delay to basically invalidate the petition on timeliness issues there's a host of cases cited by the government many from out of circuit many from out of district that a lot of them deal with a b s which has a one year session limitations unlike core nobis and none of them deal with the situation in which a client is represented the drought almost the entire time on a quasi like pro bono basis by both criminal and earlier on immigration attorneys i think that everyone when i say everyone all the attorneys were participating in this process over time to correct the fundamental miscarriage of justice and it doesn't just dawn on petitioners or even practitioners quite because as of a tactical decision made by counsel is that really what was operating here that they thought it would be tactically wiser to wait longer rather than file store and if indeed that's the case with that be a sound reason but the way tactical advantage i would say st of all that it was you're talking about the february th two thousand and sixteen date when the notice of appearance was served it was followed closer to the october of two thousand and sixteen date when the hearing was actually scheduled so that's an eight month period when in any event but he knew he knew he was in deep distress the risks were screaming from all sides every light was warning light was flashing red when homeland security proceed with filing a notice to appear for removal he knew he was in grave trouble by that court didn't he he knew that there was a possibility and only a possibility in february of two thousand and sixteen that this case would actually proceed to an actual perceiving in which there would be an removal hearing was the reason for homeland security to file the notice to appear and telling him specifically what the statutory basis was for the removal well he's certainly on notice of his destroyed bases in february two thousand  whether he was on notice of actual consequences that stem from his misdemeanor conviction at that time i do not we've started no uncertain but he certainly knew there was a real and substantial possibility that the government would actually seek the remover that's correct or would that be a fair statement of what a reasonable person would understand from the answer you're having to drive if that's that's correct your hon or but if i could just quickly move because i only have forty five seconds here now you know you're going minute so i'll reserve the remainder of my argument for  this to end it was without question on notice in february of two thousand and seventeen that to use the supreme court's language in the johnson case that he had reasons to know that he had an interest in challenging a prior that that was basically a tactical reason i think it is without question a tactical decision your honor in this particular circumstance that it tends to set is what that what the tactic what is that what they were the record showed that that's what they were thinking miss mccoist said in her book or i'm nervous hearing your honor that they chose not to arm their defense that they were waiting to see whether the petition would actually be proceeded with i e that the government would prove the underlying causes that create the mandatory circumstances for removal i e his on his earlier conviction which is provable so only by proof of a copy of the judgment and conviction so that was a a bizarre quite standard to take she also said that numerous times that for a cuban national it was no big deal that this proceeding was occurring that he could simply take a deep water and it wouldn't matter that according to the pleadings in this case does not meet those criteria so he is still in much the same condition that he was in the two thousand and two when he was warned six times the district court without question said  proceedings after they had been convicted of crimes here even before the policy changed your honor i've done very little immigration work in my career and to be honest i i have no idea if that is true it would not surprise me that it might be possible that the government two governments had worked together to do that even prior to the wet foot dry foot policy it was a policy so it's possible there are exceptions and i am afraid i do not know i can find out the quote without any of it or nothing in the record about yours no sir there's nothing in the record about the issue i have a question and i have a question about what what a district court is supposed to do here and whether what the district court did was sufficient i know we have in effect assistance of counsel and i'm also talking about the district court and the district court can't sound know for sure you're going to be removed you need to know that because then you'd move you play a move to vacate you because you know whatever so here the dish court said does a good chance or a possibility and like you say tried to tell the defendant you need to be aware of that is there any problem with what the defendant that he was at risk of deportation and three times the district court told him that it was not a decision that was within the district court that it was solely within ins d n a the h s now whomever the correct agency is b a decision your honor the attorney's obligation is to give it vice if it is crystal clear what the advice is but if it's unclear what the advice should be then simply warning of the risk is sufficient in the language  itself your honor and we know of course that pity is not retroactive so that was a new rule announced in two thousand and ten so in two thousand and two do i believe that this court's conduct as a whole was correct yes because the sound reasons and that his ignorance of the law or reliance upon attorneys was not a sufficient grounds either as a basis to determine that he had met his sound reasons for the twenty month likely  petition in that it was a circumstance where there was literally the district court lacked any jurisdiction to act because the changes in the circumstances from the original conviction to the time of the court no this petition opportunities are available to nearly every defendant in the system quorum notice is considerably narrower and to say envisioned that the rules would be broader doesn't square with the supreme court's after receiving the notice to your in february of sixteen and after consulting with mister sullivan all one week later and retaining your services one month had noticed at least as soon as step be wary of two thousand and sixteen sen i know i don't understand not or so if that were the date you were tracking from a petition filed within one month of that if it somehow december february two thousand and sixteen was definitively the date to track from then one month later yes the district court implied and certainly left open in the government has argued that there is an alternative remedy here and thousand and three would have been sufficient grounds for the district court to also have denied this petition so the district court could have found by could could be implying from its at least that it was even though it was untime if there are no other questions i would ask that this court affirmed the  one of the problems with the framework which was being applied to look at the sound reasons for de lay then is completely unique to this specific case is that we've been talking about when you and he was affirmatively miss advised by the district court as well because the district court said i do not believe it is included in the mandatory removal proceedings provided by congress that's an incorrect statement of the law well that not that's that's that's a statement wasn't that right that's correct but it wouldn't but but the problem is that it's an aggravated felony for immigration purposes yeah it did and the district court said i don't think this it what he's saying is the just recorded saying i don't believe this time from february of two thousand and sixteen until the until the filing and still is today obviously in all these other cases dealing with sound reasons for delay where they rejected corno because petition because the petitioner sat on his rights a lot of times because the petitioner hasn't found a lawyer or because he hasn't done anything to move the case along by finding employers here even if there was a wait and see approach that was employed by his immigrate immigration council at st he's never on notice of the fact that this remedy is even available to him he's not on notice of that in till essentially the time that my law firm is retained and we do the legal research and analysis because this is such an extraordinary and weird archaic remedy to even determine it's a possibility because he doesn't have  not in custody and so i think that's a critical fact that this this client is represented by counsel the entire time so why he's being represented by coun he's relying on the advice of counsel whether it's to wait and see or which i don't believe that actually would happen but assuming it was he's relying on the new vice of counsel he's taking directives from coun he is an unsophisticated litigant in the sense that he's is not a lawyer he doesn't understand work or notices and no one's even told him what that is so if he were to file any time between february in two thousand and sixteen and sensually july of two thousand and seventeen or excuse me august or september of two thousand and seventeen what is he going to file he doesn't have the knowledge he's not on notice of what his potential remedies are and during this entire time he is immigration lawyers and later on criminal lawyers that are looking at this and evaluating it so i think that is a critical factual distinction in this case that separates it from every other case cited by and if there's nothing further from your honour's i would ask your owners to reverse the district court order and the conviction well at most we would just remand for furthe