i did not take issue with the fact that pleadings were previously taken in the b i a affirmed the judge's decision with with without opinion what the immigration judge focused on was the rate was a regulation eighty a far to thirty nine point one and the immigration judge found that that was not a regulation that provided any benefit to ms o'donnell and that its violation if there was one was not prejudicial we don't believe that they have why is that why this why do you contend that that to service of a notice to appear that's issued by the secretary of homeland security the act at twelve twenty nine a one piece as that that notice to appear has to include notice of the legal authority for the proceeding the the congress has been acting eight us eleven zero three eight four making authority to the attorney general now to the secretary of homeland security and a form was prescribed l proceeding but the title is and show what was what why would that be a lack of jurisdiction well if the officer who i'm not i'm not saying your argument can't be correct i mean officer as has the government argues that it's answering braith that any immigration officer can issue a notice to appear well that that clearly is an argument that can't be sustained the the regulation is there for a purpose regulation is there to say that these are the specific limited officers who can exercise the secretary's discretion to to issue a notice to appear if the notice to appear is not issued by the secretary of homeland security well then the  notice to appear that that would divest the court of jurisdiction well twelve twenty nine eight would only take effect if twelve twenty nine was was complied with it's in fact the only end that contention square with the the lines of authority in immigration law order and other areas of the law just generally in administrative rate of regularity the way i mean that there are a legion of cases on that presumption and in many different in ministry of agency contacts so proceedings invalid because a form was signed by the wrong person so it's not a question of in my mind one of the p a they rely upon it's a question of what proving a negative proving that the notice to appear was not issued by an immigration officer identified in the regulation would be an insurmountable burden she she could never prove that she doesn't have access to the agenc she doesn't have access to the agency's personnel records all of the information is in the possession of the department of homeland security but just as a matter of common sense in process what happens to the notice of appeal immigration court that commences the removal proceeding and vests the immigration judge with subject matter six and then the alien is taken to the immigration court on the basis of a notice to appear that's correct and isn't that the place to raise the inadequacy in other words there you may have immediate access to the person who who signed that i mean everybody's there you do it very very efficiently and you go on about your business she did it there you're honest he she she filed the motion should the immigration j raise it she raised subsequently but she raised it while the case was still at the immigration court level when there was the opportunity to present evidence and no evidence was presented by the department of homeland security in response instead they made arguments that they didn't have to provide that that notice that there was no statutory or regulatory requirement that they tell the ele and the title of the of the immigration officer and the immigration judge said well it doesn't really matter if you know or not because there's no prejudice what does it matter and it does matter to both immigration it should matter to the immigration judge and it matter to us all donna because she was entitled to have her case reviewed by the secretary of homeland security she was entitled to have just that the discretion of whether or not to remove her  exercised by a senior immigration officer that's why the form prescribe for us requires that the title be there so that the immigration court can know that the a senior official made that determination and the elling have confidence that the her case which was was reviewed but here that there was nothing the there was a finding that that the regulation that the regulation the violation of regulation just didn't matter at all right levels are supposed to handle different tasks and your position seems to be that that a reviewing court in any of the any of those agencies  goes to what are the different stakes in this case you have an alien who claims that she's going to be persecuted and then he was let the united states for for more than a decade who's facing deportation to a country where she said a relative murdered no one none of the agency officials in the immigration judge or the i didn't review it from from that vantage point that there was past persecution and they were looking at this evidence to see whether there was a rebuttal whether or not she had a well founded fear  about a fear in the future you didn't have past persecution whereas the immigration judge should have made a determination op or down whether whether there  past persecution the immigration judge would have discretion to to grant asylum in the absence of a well founded fear based on the seriousness of the past persecution the immigration judge also could have granted asylum based on the risk of other serious harm which in other violent and dangerous perhaps the immigration judge would considered the lengthy residence miss o'donnell had in the united states the fact that she was a law abiding person here in the united states are a lot of different factors that could have come into play if persuaded that the country conditions in guatemala have changed and that's a tracking of the regulatory language ok but could where as we say putting the burden on the government to show that they've changed well you never said that explicitly your honor but what's very clear from the record in this case is that in this this hernandez appeared in immigration court she relied solely on her application from ninety ninety two and that the only other evidence that was placed on the record was by the government that was in the form of the country report ok so immigration judge could have arguably at that point if she did lie on the application and i think possibly even in a way that  because that would have been the end of this i mean that would have ended the story one i'm not sure well i'm not so sure that it would have ended the story because i think that the immigration just would still have had to look at whether or not there was a well founded fear of persecution in the pentagon's which actually did in this case and found that there not sure that there was actually there actually a finding of past persecution here i think that from the analysis it's clear that the immigration judge assumed it court concludes that there were but that the appropriate determinations were not made in this case then the government obviously would agree that they should be reminded to the board for further proceedings consistent with that analysis but in the end in this case because of the circumstances of the case and because the immigration judge did use language that tracks the regular tracks the regulation in the tracks the necessary analysis it seems that this that the court could affirm on that basis on the basis that there really has been a change it's a country conditions in guatemala and that she isn't as entitled to asylum for for those reasons and especially in light of this court's precedent hernandez you know that there's certainly been changes in guatemala but i'm not sure we're under ventura under the supreme court's precedent i don't think we're supposed to be making a determination about that in the first instance and it the i j a clearly was motivated by that but at least i'm just speaking as one josh i can't discern from the written opinion whether or not the i j a made a finding of past persecution and i also can't discern that opinion whether it's the i that country conditions had changed i don't think government submitted the country report but that's a slightly different issue as to whether the i j a is viewing it that the government has to approve as opposed to the other party has to approve it well the only thing i can say about that your honor is that that wasn't an issue that was raised or briefed by the other side either below or before th i understand the court's point is well taken i the only thing that i can add with respect to the past persecution is is that in the end as i stated before the analysis seems to be far from sound on the change country condition it's conditions issue and in as much as there was no finding expressed finding o and as much as that the petitioner raises an issue about the notice to appear in this case the the the argument was that the e u or did not have jurisdiction over this case because of the failure to disclose jurisdictional facts but the that that's a question that the immigration judge and the board would have to address in the first instance but the effort certainly would were not the set of circumstances in this case at least the petitioner didn't prove as much and it was his motion to terminate what's clear is that all of the necessary jurisdictional fact in this case or established the notice to appear was personally served she did not she went to the immigration court hearings she appeared she did not contest to remove ability in any in any way and she had a full understanding of the legal and factual foundation for her w ability and under those circumstances  sort of like what what's the remedy if the regulations violate well i think again that's something that the immigration court in the board would have to decide in the first instance your honor there has been there have been there's at least one for discretionary discretionary grants of asylum based on suffering a serious harm in her going appellate very that appears at page eighteen of the ministry of record and her three as far as the the board case that the government rights that that have to be given and the board found that because the immigration judge at it had a concurrent duty to provide those notices after deportation hearing that there was no reason to terminate but in this case where it's you're dealing with whether or not two nine zero