was clear and unambiguous and was able to be understood without any type of chevron analysis as part of this decision she the court indicated that time in date were crucial factors to the notice to appear this is repeated in the board of immigration appeals case bermuda's coda at page forty one a putative notice to appear is not a defective document a putative notice to appear is not one that is similar simply contains information that's trivial or minister serially incorrect it is one that la specific information and does not allow the immigration court to proceed in our case mr news broke was was provided a document a putative notice to appear while he was in  detention facility with the time indeed that had already passed when he received the document in fact the time indeed was at a time that the court in removal proceedings was not open twelve o'clock in the morning this same document was not delivered to the immigration court until five days later the immigration court did not terminate those proceedings at that time but continued in the proceedings we're arguing today that the initiation of mr did decide issues and then why do you believe a subject matter rather rather than a personal jurisdictional question if he knew he had a suit initiated against him there's no doubt about that i mean a removal proceed and so he knew there was a case against him is no doubt about that and it was just the procedure of when and how to appear to show up now if if they actually had a result like they'd like they did in  statute or in the regulation in the body of the legislation they directly refer back to one thousand two hundred and twenty nine a year on but they there in order to trigger jurisdiction for purposes of the agency it requires a charging document write they use different language don't think the language that is used in one thousand and three in one or one thousand three hundred and thirteen in one thousand and three and your ministry of proceedings your honor in our administrative proceedings we were face when the gentleman was detained with a set of cases that was deemed to be  all in this era arena and while he was in the removal proceedings he was detained for a short period of time but he was absolutely detained the court's underlying courts do not like to hear arguments that they believe have already been pre decided it wasn't until pereira this last summer that there was some sense that the circuit courts were in error when deciding that the conflict between the  the decisions that are ultimately made on regulations and in the future in terms of the exhaustion  vick case had already when we when we began the briefing in this matter the case was aren't ready before the th circuit court and bermudas koda came out and made it clear that really me and being would also be are filing another motion to reopen on th civic issue before the board of immigration appeals would have been futile and my question again is futility and and excuse for failure to exhaust i would say yes essentially indicates that arguing that the immigration judge in our jurisdiction at a later date was not a did not carry the day because jurisdiction is always a well our jurisdiction is always at issue but in city of arlington versus f c c the supreme court made it pretty clear that our jurisdiction and ministry to the agency proceeding is dependent upon whether there's a final judgment and the jurisdiction of the agency doesn't that's a separate issue than whether we have jurisdiction so i guess i respectfully disagree with the case she just cited  is well if you're talking about a district court whose jurisdiction was parallel with ours and if there was no federal jurisdiction it would the vast bulk of the district court in this court of jurisdiction i think i'd agree with you our our position would be that this court would have the authority to consider that this jurisdictional issue should be can should be reviewed by the theoretically and then remained active that the if that's if that's the appropriate measure that needs to and to me the question isn't really interesting more deferential do we like to defer to agency in a way that we would remain and because this particular issue wasn't great but but it doesn't negate the fact we have we really should not do things that haven't been submitted and so my question there now ask the government as well is which set of cases that answer good we've all got cases really kind of leaning both ways ordinarily we say we take the st case of the th circuit which is quite permissive of our ability to take issues not submitted to be later cases are increasingly unwilling to do that so i'm just troubled how you would parse all those cases out  sixteen case and the case that didn't have jurisdictional issues in it your honor but they were able to state that because the statutory construction was such that  guess i got on the court after you did and i thought all our cases said if it's not exhausted they would like your stiction to hear it but you're saying they're older cases that are more lenient do you have a response to that because ordinarily we were supposed to follow  body to address this issue your honor but i think more absolutely it's not an issue in this case so i don't believe that remains to be warranted because in this case prayer is holding is essentially an opposite to rule in your favor on the merits and not have to address exhaustion but you're suggesting that if we disagreed with you on the merits you have you did raise us in your in your brief on appeal this court so it's before us but appellate courts don't have to address exhaustion if they can rule against the party who didn't exhaust on the merits it's we do that all the time and in his cases where i think that's to be repetitive but that the courts in other circuits have agreed that the failure to include the date and time in the initial notice does not have jurisdictional significance and specifically this court recently decided and appear even though that was destroyed requires so how much else can we excise from this notice to appear before it stops being a notice to appear can we eliminate the charge of when we have a term in a statute like notice to appear and we define it we use the same definition all over that statute i mean you're suggesting that notice to appear means different things in different parts of the statute and regulations in the b s a when that be different than how we technically interpret terms as far as i think it's different from how i generally interpret terms i think in this situation it's significant that the regulations created by the agency are what are determining what should be included in a not and that they don't need the mandate either time and because they use the term noticed to appear which isn't term that comes from the statute that congress dictated and the supreme court has perhaps the notice to peer was deficient in not giving the time to appear the question is whether the proceedings can continue once there is a proper notice that the person is able to appear that's normally how we would think of it i think judge evil was in the st question for this is personal jurisdiction or subject matter jurisdiction and if that's the sort of giving notice of the date as opposed to the fact that there's a charge against you and this is the charge that goes to the substance of the claim when the hearing is going to be it's a procedural aspect and ordinarily in every other context i'm aware there may be a defect there would have the person shows up if the person answers the complaint things like that then we can proce there's personal jurisdiction of that point that's not the argument you're making your insisting that the notice to appear was ok the question in my mind is say it wasn't what's the leader a leader opinion on it and we have the stance you know if we were to say no matter what the be a b a says alderman is they come up to us what is the statute require kind of a statutory interpretation legal question i do not believe that we meant to be necessary in this case and you don't think we mean business or other circuits have been able to decide whether or not her and so you are not asking us to remain a particular statutory date men means one thing and circuit courts have taken that precise statement in another context and says that exact same sentence not  mean something else in a different context you have any case like that i have been able to find such occasion are and i don't think it would make sense logically but it leads to the next question which is what  this what are the consequences of not including one of the statutory requirements in the initial please when that is corrected later in the definition of the charging document is the written instrument which initiates a proceeding before an immigration judge and then it lists examples that are just examples it's not that they're the only things that you isn't it it's just the initiation of proceedings it would certainly have to comply with due process with procedural due process so you would have to decide whether the defendant was given fair notice that there was a proceeding pinning let's see what happens next argument i know you're not prepared on the issue specific to that petitioner but if something is race with respect to the prayer issue