brennan the district of kansas defender and i represent mr lee or ramirez my client presents an issue familiar to this court today is that whether the immigration judge that ordered his removal back in two thousand and four had jurisdiction to do so because it was predicated on a notice to appear that was statutorily defective and if the court did not have jurisdiction to do so whether that jurisdictionally void order could be used to conclusively sustain an necessary element of a familiar with this issue because most circuits including the circuit have already rejected the issue and that's the primary focus of our argument today is why this court should take another look at this issue statutory scheme and it specifically says that in talking about a notice to appear whether it's a notice to appear or the prior order to show cause a notice of hearing that i think the court considered st argument this morning that those documents shall be here is that congress is changing the statutory scheme and it's taking the bifurcated notice at the order to show cause a notice of hearing and saying it's not those two documents we're not going to have a bifurcated system anymore we're going to have a unit system and the unit to our system is the notice to appear out what this transitional statute is saying is that if the notice to of hearing or the orders show cause has already gone out and the attorney general wants to proceed to the removal hearing the attorney general does not have to go and issue a new notice to appear in the new statute but can proceed under the former bifurcated system because that bifurcated system is valid as if is expressly designated as duress dictionary and so when you rely on a transitional provision that maybe it's implicit that well if congress is saying the notice of hearing under a  confer jurisdiction because that's what the senate says certainly would have been helpful if congress would have set a notice to appear confers your stiction and so it's not that clear but the context of the public law that we're talking even though they're using the eye in a numbers it is saying it is talking about these documents being used to confer jurisdiction on the immigration doesn't matter whether this argument was made to the district court it does not  for one thing it was very clear to the district court that we were challenging jurisdiction and statutory jurisdiction the district court understood that in responding to our argument  are talking about additional authority in support of our argument we raised it in our opening brief but certainly after lopez minos came for forth and said that congress said nothing about the federal statutes pointing out that congress did in fact say becomes critical it's not doesn't make a difference to your answer that it concerns subject matter jurisdiction well there we raised it to the district court it's additional thorny but i don't think that whether we raised it or not is dispositive as we pointed out in her opening brief this is a very very fluid area of the law and how it's changed from the time that we filed the national motion to the opening brief to where we are today there's been a lot of changes in the law well what's happened excuse me but before we even get to this argument that you're making why wouldn't it be correct for this court to hold that a defendant has to would the district court went directly to one thousand three hundred and twenty six d and said that's the starting point for denying it why isn't that the starting point for us in other words you've got to you've got to meet those criteria before we even talk about the argument mendoza lopez which is a supreme court case where it says barring a collateral attack two or removal order is not constitutional you can't just say you can't attack it at all you have to give some bare due process to establish an element of a criminal case and it specifically said under different circumstances the propriety of using an administrative ruling in such a way remains open to question and we believe that this challenge to the removal order that it was void for he is saying that that is not a fit for this challenge or trying to say that we are we have satisfied the three problems how do you how do you distinguish but no nine in country versus riot quote even so to better jurisdiction be ok maybe you're right but how do we get get around i mean that is the supreme court how do we get around with as many said subject matter jurisdiction cannot be waived and so the question of how and when it is a debt i mean i'm not trying to pick on your journey but it is may not be it may not be attacked collateral situation where they're talking about subject matter cannot be attacked collaterally i think there are situations where subject matter jurisdiction is attacked collateral in this situation we're not only looking at it this is a collateral attack confines of the criminal statute as opposed to simply coming back in a christian and immigration situation for example and collaterally attacking it later it's how it's being used in this situation that would allow the collateral attack subject matter jurisdiction this court also in lopez minos looked at one of three hundred and fourteen dollars and said when that regulation talks about jurisdiction it was merely being colloquial but we would point out that when you look at the transitional statute that talks morning again your honor secured by you on behalf of the united states our position of course is that this court this particular case falls directly in line with lopez move munoz and last week's decision in martina's perot's as well as court is left with the at least st aspect of whether or not it can overrule another panel well we can i ask of it because you know in this area i don't know that our case law or the spring or our case law really answers sort of the challenge that arc panelists confronted with because the the the panel and lopez munoz never had an opportunity to interpret the transitional provision it was never referred to there was no presented so isn't it a little counterintuitive that we should just ignore it our position is that of course those decisions and what judge briscoe said in martina's presence that congress is silence weighs heavily against the issue and twenty nine dollars so we believe it was answer now it may have been answered largely in the alternative without the actual question presented today as to whether or not the transitional statute in in effect but it reaches the same conclusion otherwise because this court would have to engage in some level of statutory construction and i think bend those rules quite a bit to get where it would want to go if it were to accept the defendant's argument in this case would you agree now that congress was not completely silent now that there is this language in the transitional provision not completely silent but i would how i would answer that is that if this were the case that congress as this court has said and as many courts have said congress says what it means and means what it says if they wanted to establish jurisdiction in one thousand two hundred and twenty nine for the immigration courts based solely on the issue of these types of documents that are file they could have said so but it seems came but that's a different point isn't that i mean this is the clear statement point that congress clearly say it's jurisdictional as opposed to congress saying absolutely not would you agree we've moved away from absolutely nothing based on this transitional rule argument not necessarily because i think congress's understanding of how it established these agencies to deal with the immigration matters was clear that the jurisdiction vests with the immigration courts and that that jurisdiction did not rise and fall on the issue of whether or not a notice to appear at the date and time i think that's the overriding issue that all of the district or all of the circuit courts have result have found a way to resolve this issues that if congressmen and for the immigration court's jurisdiction to rise and fall on that particular document it would seem odd in the least because it's very clear that the overall understanding of how these agencies are to deal with immigration matters rests with the immigration courts and that that jurisdiction if it meant to rise and fall on one thousand two hundred and twenty nine dollars a they would have said so because it would have it would have given to shoot that raises an interesting question and i think the answer that that i would give today and let me preface that by saying that this area of law is quite fluid this is one of the st cases that that does not come from the immigration courts this is the st case that this court will address in the context of an actual criminal conviction so one thousand three hundred and twenty six d is in play now the lower courts certainly seem to suggest that that was the case i understand their argument about subject matter jurisdiction and why that in effect overrides the issue of the one thousand three hundred and twenty six d analysis and i think to answer the question that you raised judge bacharach is it appears that the argument is such that that is an element of the offense and therefore that it is not wave a ball in the context of that in the contract issue of whether or not you could waive subject matter jurisdiction or forfeit the issue by addressing it collateral from a can i just subject matter jurisdiction is that our position in our position is yes but we certainly understand and can and can appreciate the circular position that she places the earth that he places the court in in the sense that he can only now raise the collateral issue because he believes it's based on pereira and so he's collaterally attacking the subject matter jurisdiction of the court based upon what the supreme court said so it was not available to him in two thousand and four to address this issue or attack the issue and the facts of this case obviously are quite clear that he wanted to get out of the country as soon as possible he didn't challenge anything he waved at all certainly for them to have a one thousand three hundred and twenty six dollars d claimed i even they i think would understand that they're to fail on that front we're not forgoing the issue about whether or not that had to be satisfied we think in the context that it would be a much clearer argument to say that they must satisfy one hundred and thirty two thousand and sixty dollars but it's quite clear that nobody in that position i cannot think of a situation where we would see an illegal alien being able to satisfy thirteen thousand and sixty dollars in this circumstance by raising this particular claim of whether or not of course some point this argument that somebody decided to make this novel argument that ended up getting to pereira in supreme court well why couldn't he have been the person to do it i gree they certainly could have but pereira it was such a narrow question only now are we seeing illegal immigrants make the claim today that somehow pereiro applies and that has been foreclosed by every circuit court there is not a circuit court in the nation that will say the prayer applies to this question and so really these novel questions are now arising today based upon that decision i'm not sure back in two thousand and four when this issue was coming up for larry ramirez that he would have it in any way understood to challenge when the regulations very clearly said if there is no date and time if a follow on notice of hearing is sufficient and again that gets to another issue which presupposes that the court had jurisdiction if in fact that regulation authorized them to give a later notice that satisfies so one of the circumstances even he looking at the regulations would have to have said well there's not only did i get a notice of hearing i wanted to go so he is in a much difficult more difficult situation than most immigrants who might challenge that at the time if they really wanted to challenge their ability to stay in the united states he did not he waived everything but i so you're recognizing the constraint that he's under but you but as a matter of law you still believe that the d would have been hurdle he would have needed to overcome i think so and i think beginning today i think that's more the more valuable argument to make because now it appears everyone is on notice because these are being filed all over the united states so if they are going to challenge it it's really from this point forward it's not unlike k b s law in the sense that you have a new opinion that might inform that decision but the courts have been unanimous in rejecting that it doesn't necessarily mean that they can't raise it but i think it gets back to judge matheson's earlier point should he have raised and has he forfeited it by not raising it before the lower court on the issue of this transitional question because the court didn't look at it in that context and it certainly wasn't raised in the sufficient way that it would have ruled on the question of transitional the transitional statute if it is additional authority here i think this if this court really wants to address the transitional statute it's going to have to work an opinion in such a way that statutory construction would somehow suggest that congress if it wanted to but failed to establish a jurisdictional link through  of the transitional provision i think it goes in large part to not unlike what what your honor had said is that the notice of hearing and the notice to appear had their own distinct roles in establishing the time and date of when they were supposed to appear and that the court could rely on the noticed of notice of hearing and i think to the degree that they were establishing in this transition in the village and to hear these cases to make sure that there was no road without congress using that term and then allowing these regulations because it one would think that if that were true why are we only hearing about it today if that is the issue only now so many years later almost twenty some years later are we now getting to the issue about whether or not that was jurisdictional it would seem to me that if it was not apparent at the time someone would have raised the jurisdictional question well big you know maybe so or maybe maybe nobody thought to present it we are where we are so believe me get to what i think this brand is is arguing you are and she puts it more maybe eloquently than i'm going to ask it but if if if the issue on the notice of appear again the regulations also establish where as practicable and that language i think is important and in understanding when the notices of appear can be used because the notice of hearing that followed on were i think it gets to the issue of not only what this court at least intimated in lopez munoz but what they clarified in martina's presence that these are claims processing rules alone and not jurisdictional lengths and that immigration courts would be established but again to say that somehow that jurisdiction rises and falls on that either the notice of hearing or the notice to appear would seem relatively strange and i would be highly questionable that congress if that's what they meant would somehow have drafted it in such a way that we would have to find that little nugget through a series of cases in a series of interpreters interpretation of regulations that congress would say no we just that wish this agency to deal with this because they have jurisdiction to deal with immigration matters writ large so i think trying to in a way fit jurisdiction through these two notices congress is response to that would be if we wanted that and that really is i hope that's responsive to the more i think that's you know that's largely the position we're looking at it more from a practical standpoint in how congress would have looked at this issue and that it could not use either the notice of hearing or notice to appear to the reason is a transitional statute is because it's transitioning from the noticed of two of the hearing to the noticed of to appear it's the same thing it serves the same function and what congress said it serves the function of confirmed jurisdiction  be maher general question about transitional provisions like like this one have you been able to find any example of where a federal court has recognized that congress has a stab which jurisdiction through a transitional provision i have not and i have not looked at that i would point out that we this is a transitional statute and i understand this is something that the congress and acted right it's a it's in the sense that it's a large public law and all that but i just it's a novel argument i it seems and i'm i'm just interested from a federal court's jurisdiction standpoint whether any court has ever relied on something like this to recognize that congress has conferred jurisdiction i have not and i have not looked at that and there are so many agencies where establishes jurisdiction and says i mean it's a good sign i mean this transition was a good find on your part but i'm just again i'm just wondering how it fits in the overall federal jurisdiction picture and i would point out that none of the circuits have mentioned the statu e i think it is now within circuit ition that is before the supreme court but it needs to be addressed because it does bear on this directly and that's why we're asking the court to look at these decisions i want to add more one case that i provided to the government yesterday you said versus coleman it's at seven hundred and forty one that there are thirty one and i will provide twenty eight j but it's a situation where an earlier party did not provide relevant authority to a panel and in a later case the panel had to go back and look at that relevant authorities and overturned a panel after consulting with the judges in response to the claims processing that rule that was brought up in martina's perot's which was based on lopez  again it did not acknowledge this jurisdictional statute and i think that statute cannot be jurisdictional and claims processing it can be one or the other but because congress came down and said we are looking at this as the notice to appear confers jurisdiction as we read it that it cannot be a claims processing and that needs to be revisited to the point that the government suggested waiver because we did not present this with order to the district court we would point out that the government agreed that this was to be reviewed did novo agree to that after we raised the statute in our opening brief and therefore has waived the waiver as it were while the level of argument in the opening brief pale jurisdictional but it really crystallized once the court decided lopez you know since a congress had not spoken to this and when the government said that i and i had not spoken to this at all that's why it was such the focus of our reply brief and i believe i'm not a time thank you thank you counsel cases submitted thank you for your arguments