our next case is you varied states versus charges lever number seventeen dash three five four five the court my name is jacob human and i represent the appellant as a shop as labor may please reserve three minutes of my time for a battle there will be greeted thank you the question in this case is whether it was fundamentally unfair for the government to deport mr chavez in violation of its own regulation intended to protect his right to make a considered judgment when deciding whether to waive his right to a deportation hearing and i mean really the question here it's a criminal findings that it's basically forgotten about in your briefs and in your arguments i mean isn't it enough that the district court held that the hearing and went the way it did no i don't think so i mean the district court specifically declined to reach the issue of whether the government had violated the regulation it's in a footnote on the last page of the opinion it says it doesn't need to reach this issue it would do do we need to reach the issue it's a criminal matter it's a matter of of  the question of whether it was fundamentally unfair because the judge never reached the issue of what mr chavez is subjective understanding of the situation was when he decided to sign a waiver and that i mean voluntary knowing and intelligent is a subjective standard so let me give you a real crystal clear example mr chavez argued that at the time he signed the waiver he thought that he would have to wait a very long time for a hearing if he didn't sign and that's the only reason he signed a waiver and that's why his waiver was not on terri knowing  unfairness but he didn't address the key issue in this appeal which is did what did what was mr chavez is subjective understanding of the situation when he signed and was the government's conduct in deporting mr chavez in violation of its own regulations waiver that the district court has to conduct did novo review of what occurred in the immigration proceedings that that somebody attacking making a collateral attack on their immigration proceedings is titled to did noble review in the context of a criminal case and that's not my position at the court's position up recreated a charles well case but this case it in charles well is to establish fundamental unfair you sit in your position that is the position you're advocate well yes as i said i misspoke i'm advocating for the court to follow what it said in charles well which is that if you can show a quote procedural deficiency in your prior deportation a core procedural de core deficiency well i would say it's more than a technical violation but if the government had had an i j properly determined that he voluntarily knowingly and intelligently waived his right to hearing based on more than just the boilerplate in the document then we would not be able to show a procedural deficiency so this so everything hinges on the assertion that the the regulations require the immigration judge to hold  hearing it could be a brief colloquy via telephone it could be a signed statement from the immigration officer but yeah i mean everything hinges on the fact that according to the text and structure in the commentary of the regulation what the i g did here was unlawful ok well regulation provides for right that's what it provides for and then it says if the alien isn't represented yeah jay must determine that the waiver was voluntary knowing and intelligent right but is there something in that language that you think means that when and when there's an represented alien there has to be a hearing or something beyond the paperwork yeah so let me give you a real clear example about the regulation requires that every waiver document include a provision that says the waiver is entered voluntary knowingly and intelligently that subsection six so if that boilerplate was enough for the i j a to make the determination that the waiver was voluntary knowing and intelligent th b if the alien was represented its sentence would be doing no work whatsoever no it can't be doing some work because the the the id is responsible not just for looking at the stipulation but reviewing quote the charging document and supporting documents if any as well as the peel a should in other words if the packet of materials the papers reveals some reason to be concerned then the i j a has some responsibility beyond it but if the packet of materials does i it's hard for me to imagine a situation where the charging document and the supporting documents could indicate that you know me and you are not but isn't it possible that the charging document or supporting documents could in fact show there's something here that i ought  nothing about the aliens waiver certainly with the d o j set is voluntary knowing intelligent is meant to ensure maximum protection for the aliens considered judgment and and the d o j commentary also says that when i gaze confronted with  situation raising due process concerns you can investigate further so i mean just the government there how would there ever be some how could there ever be a secure waiver of rights if any defendant after the facts could say as yours does well i only did it because i thought i was going to wait a long time if that was enough to undermine the written waiver then this whole process would be meaningless i mean that's the whole point of the regulation requiring the i j a to do something more than just look at the documents and in the context stick with me yet if we accept your argument is every single one represented aliens waiver of rights subject to a collateral attack an effect of collateral attack undermining  later criminal charge not every single one because many i g s comply with this regulation and do do more but no i mean if the i j a had a brief telephone colloquy with mr chavez and said you understand the situation here why are you why are you what you're going  just rely on the papers every day will always have to have some kind of hearing whether telephonic or not because otherwise there will always be an attack available  fact to undermine a later criminal charge because the alien can always say it wasn't knowing voluntary and intelligent and nobody talked about i don't isn't that going to always be the case that that's open to that path what i'm saying plate that's required by law to be in every waiver document anyway because that's completely circular and contrary to the clear intent of the regulation if the alien wrote a brief statement that said i understand what i'm doing here i'm entering this order because i want to be deported i don't have any you know gross misunderstanding of the relevant circumstances in this case something like that might be enough that's what i meant to that's what the form says what you're saying is they have to put it in their own hand i think that does that does a little bit more work and the ninth circuit suggested gomez that would be enough and you know it's up to the court to decide precisely what's enough but i think what's clearly not enough is is a boilerplate line in the document that says this is voluntary no intelligence that's in every single document doesn't rip reveal anything about this state of mind when he signed my as an agent cox's testimony created by judge mchugh sufficient to show that this was not fundamentally unfair that this tomo did understand his rights when he signed that waiver well that officer admitted that he didn't  remember this case but knocked about his procedure and the judge credited that and he said this is what i do in all these cases that's part of his procedure he said and this is on page nine of the appendix is that he never told the alien how long the wait would be if they refused to sign what mr chavez testified to at the hearing is that he thought it would be a very long way so just crediting mr cox's testimony doesn't shed light on mr sharp as a state of mind and you think that would have been covered by a colloquy how long is it going to take well i think often when you have a colloquy things come up and if the i j said to mr chavez in a brief colloquy are you entering this order of your own free will and he said well you know i don't want to wait a really long time for a hearing then and that might have  look further into the situation and that's why under rule eleven g for guilty plea colloquy he's it's required to have a verb a dim recording of the defendant's understanding of his guilty plea what the fifth circuit said if you don't do that it's just a problem the judge jordan mentioned years later you have no idea whether or not the person really understood their rights we need some sort of record no matter how small and brief to be sure the david declaration from the agent you would say would suffice that's what the ninth circuit said in gome sort of declaration from the agent individual eyes describing the circumstances of the situation but even what you just said in response to what judge an ass you said i mean if he wasn't sure about the amount of time kenny collaterally attack it in years and say every time and i don't think the system can handle that i mean i don't think it needs to be a full police colloquy this is the government's regulation that we're asking the court to and for yes and you know to the extent there is a danger of it is reader where you want to put you want to put some things on i want to put a little bit more meat on the bone because that's what the d o j said was necessary but you know to the extent there is danger of years later illions coming back and attacking the validity of the waiver that's because the government is violating the regulation that's designed to prevent that exact problem  because that's why we're in this court because that's what's happening in this case because the government didn't follow the regulation which is create some sort of record have the i g make an independent factual determination outside the boilerplate that's that is your interpretation of regulation which is what we're here discussing say gomez a couple of times gomez circuit case based on the night circuits decision the burden of proof is on the government right the ninth circuit does a put the burden of proof on the government gomez does not turn on that circuit the burden is on him that's right yeah and that does not make a difference and i direct the court to gomez hernandez which is a district court case from the eastern district of washington on page three i can give you the full cite two thousand and eight west law two zero nine six eight seven six the district court said in exactly this sort of fact pattern even if the burden is on the defendant he met his burden to show the invalidity of the waiver because he testified that he never spoke to an object and the government prosecution this is not a review of an administrative action and what we know is that they were view the collateral review of the earlier removal order in a illegal re entry prosecution is limited it's limited under section thirteen twenty six and under this court's precedent in torrance and other cases to looking at whether basic requirements of due process were afforded where you would you wouldn't disagree with a waiver has to be no intelligent and voluntary or you do have a problem with some basic absolutely in the end you're anticipating my next sentence which is that's what judge because you did he look to make sure that the waiver was knowing involuntary and upon finding that that ends the matter for criminal purposes would there be an issue if there were a motion to whether you did file a motion to reopen ten years later they did not succeed but sure he could proceed with this in the immigration court but in this court what matters is a process was a given notice of the charges was he given an opportunity to be heard that all of that could be waived and he did according to the district court waive the knowingly and voluntarily the difficulty in presenting this argument your honour's is that we have a moving target here if you look at the original filing that was made by the defense it was all about whether it was knowing involuntary and the defendant presented a barrage of what turned out to be completely false claims according to the dis court's findings the whole premise originally was they never tommy had a right to counsel the forms were preprinted in the world already checked the agent came the officer came and badgered me to defend the testified three or four times a week for a month this was the gist of the argument that was presented this report so judge me q did what we need him to do he held a hearing he considered all that and he rejected all of it he found the defendant incredible he found that the agent did not badger him that the only reason  officer came back with a stiff elated move or form was because the defendant asked him to and he we have the form where the defendant asked dick everything was given him in spanish you could look at the stipulated removeable order which paragraph by paragraph is translated know for our immigration attorneys but for purposes of this case it does not matter if there was a regulatory violation what matters is was the waiver knowing involuntary and josh mchugh has resolve that issue the we can go back in time and we have the officer here we have the records from the prison we had everything that was necessary to do what my friend mr sherman is correct charles will tells us to do which is show that it was knowing involuntary waiver and at that point whether there's a regulatory regulatory violation just is not consequential otherwise this court would have to be the first court to hold that in violation of a regulation were guarding removal proceedings is itself a due process violation that's the only way that the defendant can get the relief  was there was no valid description given to the aliens were guarding their rights of both of those cases came from the same detention facility where they had the same flawed procedure of weeding out a stipulation in mass to a whole group if this and knowing a voluntary waiver in judgment you did it disposes of it you know they do have one other argument in their reply brief that i'd like to address which is that judgment he didn't explicitly say i find this waiver knowing involuntary he did use the word voluntary in the course of his opinion but putting that aside what he did was he responded point by point by point to every factual claim that was made by the defense as to why it wasn't knowing about the tech and in that context the final footnote makes perfect sense the final footnote of his opinion says given my findings i don't have to reach the question of whether it be i j was required to find it was no involuntary that put not only means that i've just found it it's knowing involuntary and he's done which charles well commands him to do the last step in this sort of moving target here is i hear the argument from mr sherman this morning well wait his findings are correct about the pressure he faced from thinking he's going to remain in custody it sounds like this might now be a clearer air argument as to the difference factual findings if not the court said maybe he was pressured by the fact that he had to weigh whether he knew of the length of time or not that is such a common situation it's common not just in immigration proceedings it's common in criminal proceedings any criminal defendant could say i pled guilty because otherwise this is going to stretch out for years i'm sitting here in custody that's never been seen as a basis for invalidating and knowing and waiver admission whether it's in the immigration context or the criminal context so basically what we have here is of knowing a voluntary waiver we have a rejection by the different court of all the false claims that the fundamental unfairness and indeed your client was not to be believed and then and there was a voluntary that's how the government poses and says that's all charles wells requires and the footnote that you cite is nothing more than his way of saying it doesn't matter whether the i g found i'm right i don't think there is i don't think that's what the court did i think if you read the court's opinion carefully you won't see the court ever say that his waiver was voluntary knowing intelligent and if that's what the court was doing i don't think there was sufficient evidence to make that finding so we are in a clear way because if we accept the government's position that's what that that's what judge mchugh did would you agree that if there was a record support for it that that's came up for you you waiver i'm looking at all the evidence and i believe the government and i don't believe mr zappa but that's it i don't quite agree with that because i think we've shown a core procedural deficiency and i want to trust the government's are going on that in a second and then you get to the second question which is prejudice and even if the district court found that mr chavez's waiver was in fact that would i think the court really should consider a presumption of prejudice here because the government's misconduct in violating this regulation is so severe and you would say the fact that the i g didn't find it your client is prejudiced i think that on the second on the first point we've shown the violation on the second point whether or not there would have been a different outcome but for the  violation i think the court should presume prejudice the court doesn't presume prejudice that a finding that his waiver was voluntary knowing intelligent would would be fatal to the case but i don't think that findings in the district court's opinion and i don't think there's enough evidence for it if i may just address the government's argument that this was just a regulatory do that and this court reversed the removal and said it was fundamentally unfair because that regulation was intended to protect the aliens right to counsel now there was no actual violation of the aliens right to counsel in that case he wasn't affirmatively prohibited from having an attorney but because the regulation was intended to protect that right and make it meaningful the violation of it was fundamentally unfair and have the same situation in this case the regulation requiring the i j a to make the determination of voluntariness was intended to protect his right to make a