those letters i guess that's right well so i just wanted to emphasize a couple things about that and one in this comes right from the hyde amendment itself the focus has to be on the position of the united states position in the this is a matter that preceded essentially in two stages if you will resulted in two opinions hearing the cover number of days a series of exchanges between church warning and counsel judgment act made as we all know numerous findings of fact that  will that did drive is the ultimate determinations of oath faces and i'm sure my colleagues will be exploring some of those as well but could you could you help us with how if at all those factual findings can be reexamined if you will or to put it another way are they subject to collateral attack here i i believe they're subject to collateral tax for the not of the reasons i gave d in my reply brief where the official reasons for why we are office did not take an appeal of the order of dismissal ok and so that was a pretty critical decision for the government to have made here it was not only in terms of what we know now but it was that it was an important decision to be made at one time when it was correct and then so let me emphasize what so i personally was not involved in that this is you know i didn't learn about this case until the hyde amendment decision comes down and it's all on fire i will tell you if i were involved i had lied would have a much more direct reason for not appealing this and it's simply that i don't think we could have and the reason is mr rove moves on behalf of ra because as long as it grants somebodies order is it as some order a dismissal with prejudice the other side doesn't really have a case or controversy to take up i mean the supreme court has said in jennings versus stevens and t soon and chevron even the courts of appeals review judgments and not opinion your motion to dismiss was denied right it was that was i'm sorry that was not appealable as a practical matter i don't believe it was let me put it this way if what matters a little i don't think is a legal matter because of jenny versus stephen so you would be asked them to review an opinion and not a judgment because we would be coming to you had in hand saying yeah we have no problem with the judgment the court heard our problem with the way it got there and i cannot imagine a court it would be an advisory opinion i guess  i can't imagine a court giving us a decision based on that or if i'm taking it from your argument although you've not put it this way that what you're trying to do is  purposes of the eventual hyde amendment determinations any suggestion that what judge one acted with respect to the motion to dismiss constituted race agree that you're there because what it would have it is your issue well then i think you have to go through how much of that was gratuitous in the motion to dismiss versus how much was necessary in the motion to dismiss and really all you had to find in the order granting mr rose motion to dismiss was that of the forms that led to the two thousand and eleven removal border were not voluntary were not completed voluntarily everything else and that is and in fact by the time the judge reaches our motion to dismiss that thing is moot that is moot by that time as the bond motion why isn't that a basis for for appealing go back to you have to imagine us the d o j can't just appeal anything we want we have to go to the solicitor general and again i'm not being involved in this personally i don't know what discussions were have but i cannot imagine the solicitor saying yes you're right that opinion on your motion to dismiss is moot but how in the world that can we expect to go to the court what i would get up i don't understand what difference the reason for the decision making or whatever the reasons that the government considered in relied upon in its determination not to appeal  have no import for us in terms of whether or not what we've got here is final people who are today i think you have to take into consideration st of all that we're not like the physical party in this case and the hyde amendment in every situation is going to be applying to us the d o j if i accept or or the law becomes what i think your honor is sort of saying then every time we get an adverse order and we think there might be a whiff of a hired application coming we have to take a protective appeal just to ensure that that thing doesn't happen there that is going to multiply exponentially the number of  the motivations of the party to litigate it i take it that the argument you're making is that the government didn't have a motive at the time to contest those findings given the judgment and that  read or will there was issue preclusion in the circumstance that it might set up a perverse sort of incentive for the government to take i need jerk appeals it would i mean that's that's the way i look at any anyway is that we would have to the order of dismissal no matter how unnecessary those were to the order no matter how well litigated they were i mean keep in mind the charles well no seventeen we never even get a chance to litigate that because that's findings that go to things like witness credibility and determinations of witnesses motives what what is your argument based on the record about why we should find that there was clear and the clear that we care about for the hyde amendment purposes now is the courts really repeated whining again and again that we two agents were liars and that they you know why repeatedly too long and the problem that i have with it is when a court makes a flying like this i don't know you guys are aware but the agency that employs those agents all believe me this is a very very troubling aspect of the case i can assure you every member of this panel is very sensitive to that and very aware of that we've got two agents here who have had findings made a sensually against them which undoubtedly with findings that stand will affect their careers going for not just the not only that but their their appearance and testimony as witnesses not if they are ever called again not just that either you are it also because when the agenc take this so seriously that when a court finds that one of its own has committed perjury which the court at one time did use that word that gets referred back to us for possible prosecution for perjury so when this judge is calling these people liars willing milly that is putting their personal liberty on the line i write it and as i've tried strenuously to do here this panel is very very sensitive to i'm sure and we're very aware of all of those implications that said the question judge crouse ask you about credibility and motive those are factors that a finder of fact is uniquely in a position to determine not a court of appeals not a reviewing court go to we do about well that it doesn't mean they're on review i understand when the findings are based largely on demeanor or something and the court used that word i think one time but largely the findings that these men were liars was based on these so called lies that they told in their test the marty and when i review this case for possible prosecution and i get through this testimony i think i missed something the judge is citing the record he's quoting the record i think are right i maybe have to read the whole thing to figure out where the lie is and when i read it again the problem becomes the judge it's almost playing a telephone game with him self where he remembers correctly on january th twenty teen that he asked officer darvish does the crissy during the import of his question  actually that the answers that had been given prior to the recess didn't make sense now the answers were about the process or the procedure that that followed but that's can textually that's what i understood the witness to be responding to correct that the judge did said and my understanding is right with a twenty six he makes the following two contradictory you know selections and then the age fifty one comes along and that's contradictory everything else the judge is not wrong whatever procedure was used here and there's no reason that doubt this was the procedure was incredibly confusing even for us it was both confusing and in some measure redundant if you will yes right and yes some measure nonsensical and some may because we can't do two things at nine o'clock and he said the clock on the wall is the time we put down yeah and science when the service has been completed this is a big problem part of the area where the judge went astray and part of it is mr hollow well did not have the opportunity to prep the witnesses on the questions about the time discrepanc of having to put witnesses on the stand who and ask them a question they hear the know what the answer is going to be is a know how to ask them these questions so as not to confuse them and sometimes he does confuse them but there's a big difference between signing something after it has been served and signing off on it which is what legal counsel somewhere d h s s they signed off on a were approved but it of at the very least it seemed as though this was a botched job absolutely it happened and it may be what maybe one of the things that's troubling to me about the record is it may be worse than a botched job because we didn't get we called witnesses to tell  dorothy mark in blue panel a day i get all through would appear to be a preprinted x correct correct and i would like to know also why do you pre print x is in boxes that doesn't seem to make any sense right doesn't seem to make any sense to know so it is i understand your position mr coke is you're starting from the principle that that this was botched at intake shall we say yeah but that doesn't mean that the prosecutor who learned late in the game that it was botched intake acted in bad faith or frivolously or vexatious no in fact he did every turn things that were quite hard to do i was hard to put witnesses on the stand asking questions you know the answer to in his heart to listen the judge call them liars it's hard to move to dismiss your own indictment it's hard to look at judge who so wants you to call your own witnesses liars and demur because that's really the most he can do at that point and he does he's doing exactly what you want prosecutors to do and he's getting punished for one thing he might not be doing that you want prosecutors to do and this  seemed to animate the district court is the notion that the assistant u s attorney was working hand in hand with the client right members of the h s for participating every step of the way in fact appeared at all but one hearing and the district court was troubled by the fact that despite this cooler plus ration coordination and communication when it came time to get an answer from d h s he would you give the guy notice to appear hey would you agree that you're not going to go forward with an administrative removal because it was as you have conceded  the district court got no satisfaction on that well and isn't that problematic that if is the problem it is not a problem that we created and i'll explain to you why on march st two thousand and eighteen at that hearing that's exposed to be hearing about something else but no interpreter ordered so it becomes about now the competing motions to dismiss at that time mr rose says no i want you to grant my motion because otherwise d h s s can rely on the two thousand and eleven removal documents and and that must've gotten back to d h s through the guy at counsel table whoever that was so march nd the h s offers to serve him an n c a a and he refuses ok that would have given him any everything he wanted because an m t a is a notice the a stands for appear he's going to appear before and i j and the notice is not that you're going to be removed because you're an aggravated felony and you come back and move you know after being removed your position with respect to what was the case as an inclusive whole here is is that your strongest position if you are stuck with the district court's findings it is in the end the case is an inclusive whole so remember you st consider it the inception of the indictment well no one disputes mr ray was an alien no one disputes that he's found here again and no one disputes that he had been removed pursuant to a deportation order we have all of that is a file we don't have a within is a file of fear persecution or torture or anything like that that's that's a clean indictment right there it's not until the january rd or th hearing  where it becomes clear to us more than just with mr rose claims about the problems with the forms but the judge is that something has gone seriously wrong with the service of the forms we're not going to be able to meet the two trials well factors so we go i'd as of january th and then on it's all about prejudice for us and that's all mr hall will does but it's almost like the judge is doing a slow burn here and he's you know he keeps trying to drag us back to the form things agents lying and all of that and from our perspective as problematic is his belief in those findings are they don't they aren't relevant to us because our position the one driving the car is that there wasn't prejudice many of the district court's questions and comments did is you suggesting go to the foreman and obligations of the prosecutor here and i spent a lot of time with this record and then it occurred to me i ought to take a look at the united states attorney's man terms of its dictates and i want to hear from mr roe on some of these points as well one section of the manual says it is the responsibility of the department of justice to enforce the law well i to be candid i had not thought about that coming into this that is consistent with our job and sometimes that creates that's part of what makes this job hard is sometimes we want to do something that is not consistent with or even antithetical to the interest of an outside agency and you know when you have personal relationships with them and you're working with them on other cases it can be difficult for the department of justice and this prosecutor interest here was the prejudiced well known determination yet to be made right correct was a purely legal interest legal determination to be made right from january  on that was that was the position of the prosecution despite the court more than implying stating contrary to the record that we had you know been pushing the forms the whole time there's another section in the manual states prior to dismissing any indictment the united states attorney should consult with the referring to parchman or agency and also seek to obtain the views of the investigative agency involved in the matter of that i can tell you that that did happen here it really to that exact extent which is the following with the decision was taken again i was not a ball but the decision was taken on sunday in late february t dismiss the indictment and that was mr hollowell and the top brass in my office not the h s at all no but we take that decision we advise them i believe the next day that we have taken that decision and their response is to freeze the redactions of the family they filed because that's very onerous time but i might my interest here is in terms of the hyde amendment and what it is from main justice if you will command it is reduced to writing in the manual on the prosecutor's performance in this case in in my view he or them at leat the legal issue of the cases in  correct correct i think he is that he is on he is handled this case who out and in became very difficult not just because the in immigration issues are difficult not just because the judge  difficult in this case but he's handled this case at every turn exactly the way that i would have done on my best day but that still doesn't answer my question as to how that plays into the legal determination of whether or not what we had here are findings of fact that or even comments of the judge suggest of bad faith that will ultimately go into the mix in determining cases right and it was well for example the judge's finding that we colluded with v h s or something i don't know how you reconcile how we can look let me give you one last  section from the manual again because i'm going to want to hear from mr rowe on these as well in a criminal case the united states attorney should not for any reason promise an alien that he she will not be removed without prior authorization from the department of homeland security the assistant attorney general the criminal what about that well and we didn't make such a promise i can tell your honor that one but i but but the district judge wanted something of that nature made and i can explain why it was so this all now this d all depends on the answer to that question depends on where mr ridge is physically would have been at the time the district court issued its order of dismissal and there were several options the court dismissed this in open court then he falls to the detainer of ice d h s s pittsburgh that didn't happen if the court did bonded him out where you live with family in jersey i believe it was and while he's on bond the court dismisses now he falls to ice in jersey if what actually happened happened which is that the court issued the opinion while  mr ray's is in any o c c in ohio youngstown then he falls to ice there and now he's in the six or so that's why he's now coming up through that now all of those possibilities this is not a monolith even with self we would have to try to subdue your hypothetical agreements with d h s all over the place and who knows if some might agree some might not and none of them might even need to come to pass so this is the district judge i think and i don't fault him for this but he doesn't appear to be understanding just how difficult it is sometimes to do the thing that would make his job i guess it would make his job there yeezy it would have made mr rowe happy if we could have done something like that we contemplated it that's why we didn't pursue it  one of the things that seemed to be troubling the judge was the idea that as a result of the judge's questions and what came to light with the forms and the different that the color version of the forms that th perceived the prosecution to be pursuing the motion to dismiss as part of a strategy to allow that to be reinstated that were to s s could do whatever it wanted to do with their former garlands of what the judge you know the judge could hold it invalid d h s s still could have tried to rely on it nothing was going to change that i can tell you that when we moved to dismiss part of the calculation was a mr raises guideline range as life system of the twenty one months it already served four to five months about ninety percent of illegal reentry cases in our district receive time serve they go right back to the h s anyway so the cost of us continuing to go in for day after day of the bond hearing is of all things falling here to be mooted by just a decision on a motion to dismiss that plus the reaction of the forms you know plus just our overall concern with where this thing is going with the judge that's why we we moved to dismiss you notice that the new notice to appear had been offered  eleven removal part and what about the judge's frustration with with the prosecution merely declining to press the one in d  again to relate it to relate this passage to the terminations made by the district court it is the responsibility of the department of justice to enforce the law bigger asli and it cannot abdicate this duty because it possible embarrassment whether agencies of the government your prosecutor and here to what the government's position was and had been and that position his actions were entirely consistent with what he's instructed to do in the manual correctly i mean if you are i told you we're not wedded to the clock here in the if you take the thirty thousand dollars foot view of this case and you try and get the question of whether as an inclusive whole the government's position was frivolous and in bad faith i'd suggest you start by looking at  was asked why why does the government want to dismiss this case and there was some discussion of well there's a matter of resources and then it was a discussion of litigation risk there's litigation risk in this case immigration cases this criminal case goes badly how could that possibly be the case though i mean that's one of the things that i think is most interesting and difficult in reading this record is the and i guess it's just the way it is that these immigration cases often dr these criminal cases and that would happen here  government doesn't want to deprive d h s s of the opportunity to remove mr ray is from the country for whatever reason it might have and you likewise are are doing what you can to secure an agreement or an opinion from a district court judge that's going to allow him to remain in the country isn't that clear from the record no for the following reason the issue what was the problem why wasn't the m t a excepted and if you go back and again look at these hearings and particularly  march nd hearing there was a discussion the government says will the h s will offer your client n t a what's not to like discussion which is reflected to some degree in the record well if that n t a comes along would he be able to pursue asylum answer no because we have the prior order of administrative removal which render him ineligible for that question with the government be willing to strike the prior administrate of order of removal and so that he can pursue in judge hornik sperms asylum on a clean slate can't help you with that right well that's that's what to my question mr coke is the judge was bothered by the wouldn't serve their purposes they were working with the h s hand in glove and when it came to things like that they demurred inside what we don't control what they did but you know you knew by then i think or at least i mean i guess nothing's for sure but you had really really good evidence at this point that the eight hundred and fifty one dollars was not going to hold up right if for for starters us made it to cleveland for the hearing the government was unwilling to come in at that if he was taken out of marshall's custody that he wouldn't be removed pursuant to the ecstatic administrative order over move on all right so that to that degree i you've got to prove prejudice in your firm if the fence right you have to prove under charles well under these circumstances you don't need to prove prejudice so you're going to they're going to rely just on the the presumption under footnote seventeen it's a holding by the court i think it's totally d appropriate for me to rely on that as a part of my argument sure holding it was a commentary it was not necessary the disposition of that case and it's not in ever implemented or followed by either this quarter or any other court of appeals if i remember correctly in that case there was actually a remain and because of there were report seizures that were a hypothetical case it was it was discussing this type of problem well is assuming that would be acted something of an extension of our law is it your position that i if you had to show prejudice that that that that was so clear that there was prejudice that the government contesting that in any way would be baseless well your honor if you look again going back to what i said about this this is the issue with d the litigation risk in struggling with that litigation or ask the government itself struggled with the concept of prejudice so that the government when the government came in and so we want to move to dismiss this case question why do you want to move to dismissed a case well the government says at page six hundred and forty five day review the relatives a files and they can see why ray has might have a contradictory position it's because the judge made them fight i mean they rolled over and play dead they were willing to dismiss and the judge isn't dismissing it so they've got a fight even though and the only ground it was clear after the january hearing it's pretty clear that mr howell noted that the court wasn't buying what he was selling on the st two prongs and his only argument that might work with this district court was the prejudice argument right but they're fighting giants they've got they've got a situation so they can't do any of that so then they're they want to dismiss the case of course i think you're right every prosecutor i would not want to walk into a trial on this case adding seen what happened to the two government agents in the hearings correct you fold and it is highly unusual both at the state level in the federal level as i'm sure you know for a judge to refuse the the prosecutor to commit in the court room and try case you can't do it that's one of the reasons it's very rare for a court to deny honor this is the reason for rule d forty eight of the federal levels of criminal yes that's what we were looking at in error your case from the school and what what the government walked into is a situation where we hear about this was all  if the judge has authority under rule forty eight dollars to grant or deny leave and so what happened here was the government found itself in a completely contradictory situation where it was saying that it no possible basis for contesting prejudice then there is an open issue as to that element and the district court here seem to acknowledge that that was an open issue by inviting continued briefing on the issue of prejudice so if if the judge thinks it's an open issue and you know we have i just yesterday on the elements clause the supreme court granting cert on that issue i you know as to whether it's a particularly serious crime we held investor to veil of that that that remained a possibility even if it's not an aggravated felony and one can dispute the merits rate of of of the reasonable basis to dispute it then why would we hold that that the government will be sanctioned if it doesn't concede the merits of of an element of defense of affirmative defense that that it thinks i i in fact doesn't have merit the government found itself in a very difficult position in this case but the they've said please let us get rid of this case we don't want this case but at the same time they are bigger risk leap advocating why because they are advocating against a potential immigration result only purpose that is served by filing their briefs that is the only purpose that served by making arguments well that you're you're suggesting the government needs to concede the merits of a legal issue that is relevant testaments not an answer my questions were talking about prejudice the district court says pig five hundred and forty three of the appendix this is toward the end i think of the january hearing the district court says so to me the only open issue in the case as it now exists is prejudice and so would the district who are identifies prejudice not only as a live issue but the only live issue how could it be improper or frivolous for the government to make its best argument weak though it may be or or maybe not on purpose  of all at the st hearing i was saying mendoza lopez this is fundamentally unfair charles well is just an application of the putting out is just an application of mendoza law as it was clear from day one that this was a painted prosecution secondly you go forward this is a hyde amendment case ok so the court they've made a decision we want to get rid of this prosecution but we want to continue fighting him i'm prejudiced that's a decision i could make that decision for the government the government made a decision only if wait a minute let me just slow down a little bit because or maybe i misunderstand your position what i heard you just say is that the government is trying to dismiss the case and the government wants to fight on prejudices that's correct but if the government's request to have the case dismissed had been granted by the district court there's nothing to fight about on produce the game or the case is over we've got a criminal case that is over so then what happens is we move back into immigration law land and that process plays out however it plays out in and mr halliwell  nothing to do in his office has nothing to do with that right the difficulty is the internal contradiction of the government the government wants to get rid of the case but it has to be on its terms and when you want the case disposed of on your terms that sounds like our legal system competing interests lawyers from both sides duking it out doing the best they can and you whine you persuaded the district judge that the case should be dismissed your way rather than then the government's way so then the question for us is ok what looks like bad faith or frivolous here it looks like  really capable zealous lawyers doing good work on behalf of their clients why isn't it that the problem is that somebody has got to pay for it the government has this document or set of documents that are forged the government brings in do you mean somebody has to pay for you because your honor if the government mr ray is files his motion to dismiss the government if the district court entered in order seen the indictment dismissed period they had no objection and that the only objection was to some statement within that order that purported to have an impact in the administrative proceedings in the difficulty was that by that point in time it had been disclosed after months of hard work that the government agents who had brought up who had participated in bringing this case had doctored the record and given false tell all right let's put this back in the context of the hyde amendment and returning to judge hardman's question which at least to me has among other things some some temporal significance we reached that juncture where the only thing left is this issue of prejudice and it's just hard to mince question suggests both sides were vigorously pursuing their own positions their own interests are met tell me how that conflict as it was plays into the case as an inclusive whole because you look you're not are you going or yes thank you thank you you look at the overall what is occurred in this case the agents have done what they did they came in and each testified that the the alien always hold the pan and d we go forward and the situation is dissected pretty early on january rd january january th a pretty clear that this is a very troubled case then go forward and at different points along the way the government makes assertions starting with the frivolous contention that was made at the january rd hearing about this document being it twenty six being irrelevant we then go where we have a series of events arguments that are made over the entire time of course of the litigation and you look back and you see that the driving concern here on the part of the d o j was taken i'm little i'm hearing you do is characterize certain evidence characterize certain behavior but that is not responsive is not to be to the question that i asked when and perhaps i should have asked it in a more specific way if this were to determine that at the point the government decides we are going to rise or fall on this prejudices you or we're going to throw in the towel and move to dismiss we're not going to concede this prejudice issue we determine that that was a fully appropriate step for the government to take that there was not bad fa think you're out on that the vat would involve manto has a bad faith an objective standard for bad faith as i understand it so that the court can look at the overall what was going on in this case is it bad faith so if we set that aside i don't think i don't think manzo holds that the but i think there is perhaps another circuits case that that that says that for purposes of context you can consider investigat steps taken previously but tell me how you how the how do you define cases and who's what does it mean it's it least the case from indictment to dismissal so again if we determine that there was no bad faith in the government's it here institute its legal position on prejudice how do we ever decide that what the government did that is that whatever bad faith may have occurred here infused was it the case i i'm trying to answer the question i want talk about frivolousness for just a nd because there are problems with frivolousness here apart from banff a you think the prejudice argument was frivolous i think that in the criminal cases  whole was frivolous because it's the vehicle that they're riding here the judge morning is asking these questions about starts with the indictment the indictment says that he was removed from the united states pursuant to law by about january  but it was clear that he was not and so they're they're pursuing a criminal prosecution in federal court with an indictment generating legal costs based on an indictment but when do the color brown warm so hot the colored forms came but i mean either it happened as a historical factors did i would say your honor if i give it a no with an explanation in my experience receiving will sixteen material  i make the assumption they're telling the u s attorney's office looks like they got sandbagged here doesn't it by v h s quite conceivably but then going back to the central contradiction they can't acknowledge that  opportunity to look at those papers to look at the forms that i came up i in the course of these hearings i was given the opportunity to give them a black and white copies i did not i could have said hey i need to see the color copies i didn't make it like no reason to do that nobody could believe everyone everyone i mean i think reagan is perhaps harder than it needs to be everyone was surprised and  probably troubled when they got the color copy right and mr howell well from my reading of the record correct me for mine as soon as he got the color copies he turned them over to you he's not in the  know i've never been a prosecutor but i guess what you do is you say my gosh i thought i had a good case a while ago looked like a slam dunk the guy was administrative leave or move we presume that the forms were executed in due course looks like a clear winner and then things transpired that surprise everybody in the government says wow i don't have a case in this case let's dismiss it that sounds like the way the system supposed to work not not a breakdown of the system one of my missing two things one banks versus grabbed a u s supreme court says that when there's a brady issue the government have a duty to set the record straight so what does that mean yes we see what you're talking about here that would be a extension of or that's new territory under brady but the right sort of oklahoma case comes down to then whether we look at the government as one unit the government as one unified whole because if we do as i understand your argument mr row to set the record straight the government had to say this a two thousand six hundred and fifty one are invalid the initio the administrative removal was illegal in violation of due process and we promise never to administratively remove him from the country that's what the case comes down to the government written large had to do all that it's not enough just to say i've indicted someone in a criminal case i have no case please dismiss it it's that's eleven area potential holding it's a major issue what do you do when you when you feel a document like theirs where the agents both agents of testified the alien always hold forty eight analysis and that's where it gets very tricky because the government wants to get rid of this case of course you want to get rid of this case it only so it moves to dismiss so it but the problem is your honor i have a terrible habit of interrupting and i want be the b o j manual that the court was referencing you should probably go and talk with your colleagues over there in d h asked about we're seeing all these bad things my goodness the agents are lying on the stand and there's this clear evidence of changing the document what are we going to do to make sure that there's no fundamental due process violation here we can't touch that sorry you we want to go we like litigating this prejudice issue because maybe it's a little gray we recognize you had a decent country conditions case here but we'll  prosecution and from it's an inception to its conclusion that all actions of the u s government including related proceedings before separate agencies need your honor i guess gray in terms of drug horn acknowledges in his decision it gets great you go back to two thousand and eleven can you point us to any case that has held it extends to actions of other agencies outside of the criminal prosecution  there are cases cited in the briefing in this case and in judge or next opinion that talk about where the agency has at where an agency has acted inappropriately that dappy by itself can trigger a hyde amendment liability miss conduct adopts and knowingly a false statement that that is enough are you suggesting that that that's what happened here yes they did because of the the internal contradiction in the case the difficulty and we have a due process violation but we can't have this person we can't give this guy a clean slate like judge hornyak said he he was seeking and like i was as i was saying he was thinking we can't do that can't litigation risk and they go did they not have a litigation risk it looked like they had all kinds of litigation risk that they had does that litigation risk terms include be affirmative defenses which might have an impact in the immigration proceedings if that's the litigation risk and i would submit that is definitely an interpretation of litigation risk in this case then the two agencies have merged their effort and it's bad the bad faith of be a just the bad faith of d o j go together this is not a case where i'm saying ok we have we a moment let me just stop here for minute i'm why would be bad faith for d h s to seek to remove mr radius from the country in fact the h s has succeeded twice at the i g a level of the b i level and we'll see what happens in the th circuit but it just strikes me as passing strange too for us to say that we should indorse sanctioning a lawyer for bad faith from frivolous conduct for making an argument that the result would have been the same when we now know that the in fact to date two adjudicatory bodies have said precisely that the result is the same he's going back to two points here guard one this is not a sanctions proceeding against mr hallo he's not we're not seeking to repair it and any suggestion that this is a case against this individual prosecutor that's not what this case is about at all good this is a case about the position of the head of their genetic set as much right and i wasn't suggesting what i'm asking is isn't there something strange about saying that the argument that there was no prejudice was frivolous or taking a bad faith when it not only it didn't lose narrowly it has prevailed that argument that argument has been accepted by  inclusive whole whether the country conditions analysis would support an asylum claim or not we get to that if we need to that as an inclusive whole is just a little piece of it why that's a piece of the inclusive whole why is the government over here when we have charles will want a child well put note being triggered mendoza lopez's trigger so the big picture here is this is a fundamentally flawed prosecution and the government is fighting to ensure that that prior administrate of order of removal is not invalidated to in some manner possibly strengthen the h s his hand so that the two agencies have joined together because one thing that they cannot accept is the possibility that you just get rid of that prior administration border removal you can't consult with the agency and say hey but how do you square your argument that that the immigration consequences that would flow to your client were based on the age fifty one when on march nd they offered you a notice to appear because if you noticed two appears inconsistent with the expedited extrajudicial removal under  fifty one now it's not your honor because there are there are two things there's the eight hundred and fifty one we'll give you a notice to appear in immigration court but we're not picking we're not picking a position on that prior but your argument they were going to give him the notice to appear and then some merrily remove him from the country as a risk and i would think that tourney who would argue in this case and they say what we'll get we're just going to drop the criminal case so all this evidence come out just trust us all to carry an immigration court that would be irresponsible on the part of the defense attorney here there was a standing order it was repeated late there were two specific hearings twice we said ok if you will agree to just not oppose rasmus motion or stipulate to be vacating of that ministry of order removal so this person can have an opportunity to present an asylum case as for example his brother did if you given that opportunity were done and the government would not do it the government said this is impossible we have no ability to communicate with the   s there's no ability to do that and instead they chose to litigate but they've given him that are particularly got he got a judicial hearing and an ass traded here and you know so if we're supposed to consider the inclusive whole goes all the way back to tw eleven why doesn't the inclusive whole continue up until the present time and why shouldn't we evaluate the fact the historical fact that the government didn't act on the eight  shift him forthwith out of the country rather they gave him a notice to appear and they gave him process actually on the immigration judge handled that one because after we went to cleveland for that hearing what had happened was  and he had invalidated the prior order of removal so that for example the timeliness issue in the case there was no one year bar because there there was a reason why he had untimely brought his asylum case that with ultimately the only way was available to get rid of that prior order because the government would be saying the immigration court had to follow that order of the western district in a criminal case that act case that was necessary so that that would be it was necessary to dismiss the indictment to grant your motion it was necessary for the district court to invalidate the age fifty one the the judge as part of his his motion needed to reach the validity of what that age fifty one sure because that would mean that was the st to cross the st group right so he this was a legitimate thing to reach other things he didn't reach the government says well he was off on a he used very careful to say i'm not telling you if you has a in a conclusive decision on the merits of his country conditions argument he had to reach two issues actually holding which were particularly serious offense and family whether family would be a protected social group and the district court was wrong about particular serious crime the district c back and says now but could i just review my notes for a moment please thank you s and i and the u s attorney's office in that finding but the district court also need the explicit finding along the way that at the government's arguments did not brush up against any prosecutorial misconduct and were reasonable and based in law i if if that is the stated finding of the district court and then one how is there a basis under the hyde amendment which allows for attorney's fees based on prosecutorial misconduct i and  of its view of d h s i standing on the the st part of that question i would say that there were issues in the case as it would be in almost any case that you could say ok looking at that specific issue that was there were good faith arguments on both sides ok that happens in any case doesn't mean as an inclusive whole the case is not in bad faith you could have an argument about whether something was timely you could have an argument about you know how bad is the how bad are things in a particular city in el salvador you can argue about that type of thing but it doesn't change that is an inclusive whole this was a fl prosecution and certain arguments that were made were frivolous which the court made for example on again on the waiver and again on the notion that this whole prosecution was pursuing told the prior move who was pursuing the law definitely in the mix here there is the it's the position of the united states there are situations where there may be situations where a assisting united states attorney has a specific issue and they are calling on it and they have no agency involvement that complicates matters but here the interplay between d h as india jay is central and let's try to read this  cures we have spread about an hour and forty minutes of this case a very good year on another aspect of this thing that i just touched on in the breeze and what i haven't discussed finality at all but if you read the briefing if you go back to the briefing a lot of the government's brief in the opening brief is about how they didn't present these arguments to judge hornyak in a way as to because judge horn act would have ruled against them and they're coming back in and saying well the agent didn't really lie you know if you look even though the there's the panel he has got about the whole the pan in this map no lining here and what they're asking the court to do is they had a perfect opportunity to bring this up with judge hornyak in the hearing on the motion for the h act claim and they didn't do it and the notion that you would go in and say oh judge hornyak was biased against them because no motion to recuse there was not this is just these are factual assertions they're now making after the fact they're asking you to situations where our motion to dismiss their own and i should be denied prosecutorial harassment animists other kinds of misconduct we don't have anything like that here we made a determination based on a number of factors and one of those of which i don't want to see get lost is mr hall well in the course of reviewing the rolling production of the stanleys a files sees that they appear to have claims we'll give him the benefit of the doubt you know if we move to dismiss d h s s can take him back and then with the the n t a that later comes down that is offered to him those things would allow him to sort all this claims so when mr rose there is a possibility the d h s s will try one stage remanded to d h his custody on the detainer that they may some merrily remove him from the country and i think it's some point you have groups to presume some regulated i get it that was the concern a concern that animated much of what charge for next said during the course at least of the in cork proceedings right then and the parts of the order of dismissal anyway but then he sort of would be easy for me to throw them under the bus but what i think actually happened is you get can consider whoever's making these copies it d h s s it probably making ten dollars an hour they're like printing these things out in black and white and and they give us two copies and we give one to mr rubio and invite him to look at the originals and you're right there's nothing that cries out for if it were charts or graphs or maybe photos we might say hey we're what's the color on this because i mean time i like to ask you to address the question of remedy here coming full circle because as as we noted at the outset the the only water that's before us is  of office is involved but it's even if we were to rule in your favor i bet that would relate to the hyde amendment leaving intact the opinions on the motion the motion to dismiss would just ask that you go through meticulously and look at every single thing judge hornyak said mr hollowell did in bad faith because bad faith means dishonesty he's he is in a paralympic way calling him a liar every bit as much as he called those agents liars ok i would ask you to believe knew what he did and if it doesn't meet professional standard and was done in bad faith you know or frivolously so be it but when i look at this he's