good morning your honour's frost casting in for the petitioner may please the court today i will be discussing three topics first that this case must be reversed and remanded on the jurisdictional issue because the b r d below relied exclusively on bermuda's code top which is a deeply flawed decision can i stop you right there i am not convinced that this is a jurisdictional issue and that could have tremendous consequences for the nature of your argument because the supreme court has just anguished much more carefully in recent years than it did a long time ago between jurisdictional issues on the one hand and claims processing rules on the other hand claims processing rules are important and they need to be followed if somebody makes a complaint but they do not affect the court's power and it's usually a jurisdictional point if it moves something from one layer of a court system to another or from the executive branch into the courts such as say the timely filing of a petition for review but moving from v h s over into e o i r strikes me as  more claims processing and here's why i think it's important the government says oh my goodness you know if this is jurisdictional then we have years worth of millions of cases that are going to be upset if you're right whereas if it's claims processing only those people who preserve the claim get the benefit of it your client you've you've raised this so your client would but there are vast numbers of old cases in horrific floodgates argument they have the other thing that i would argue is that a lot of those cases involved a limitation on one of the parties for example in i believe it was horrible there was the limitation in question were acquired said the defendant employed levy was fifteen or more employees yes and so it didn't actually involve the court's authority to conduct but the cases dealing with the time for appeal boles against russell of the other cases have said that it's jurisdictional on the civil side because it rests on statute but it's a claims processing on the terminal side because it doesn't i think it's an important point because the the floodgates argument is a serious one you know everybody seems to have thought that this regular lation that you interestingly point out is based on the pre ira ira version of the law maybe applies only to those cases that i agree and i and i appreciate the problem that this does create as you say opening the floodgates i would point out that congress didn't provide an exception in the i an a for you know unless it's too much of a problem and the supreme court in  expressly rejected the administrative hardship as a reason for going around the statue so and so and ultimately we just we can't promote mass agency disregard of the statute and that is that getting into my second point that is basically what we had here there was a system in place that allowed and enabled ice to comply with i  a to thirty nine i stopped using that system so i don't know why they stopped i'm not aware that little mystifying i am not aware i'm not a mind reader i would i have observed that by not including the time and place information that does maximize the potential for people to lose it not show up and maximizes the number of absentee deportation that that is speculative on my part though so it is so the agency actually created this problem and moreover also created the size of the problem had it had the agency included time in place information on fifty percent of n t a's issued in the last year the problem would only be fifty percent of the size so on some level we've just given that the agency created the problem and then made the problem effectively as large as possible this court really shouldn't be shielding it from the negative consequences of that decision how do you get around the supreme court's language that the holding in pereira was narrow which they said a couple times and make clear they were only addressing the question of whether the stop time rule is triggered by the failure to include that  our position is that the supreme court actually explain what made the decision narrow and what makes it narrows that applies only to the time and place information as opposed to all the other information required under this under the  statute on i believe it's twenty one page twenty one thirteen of that decision the court mentions that the initial briefing or the initial question was for the admission of any of the information and that the court but when they talk about narrow they talk about it in terms of the with the only question that they're answering which is the stat time question well that would not be my reading my reading we call that is that there are narrowness is that they are leaving open the possibility that omitting some of the other information may not may not make it and he invalid and if if they intended for the ruling at the requiring that the information in the notice up or move will if they intended that for jurisdictional purposes how did they have jurisdiction to decide prayer in the first place i'm sorry but why would they have jurisdiction to decide pereira if not having the date and time takes away jurisdiction yes so the government has made this point you know they decide prayer then they send it back for more proceedings but presumably they must have thought that there there was jurisdiction but there is proceedings that there have been multiple cases recently i believe in which the supreme court with respect especially in their discretion and still have the ruling that they do again i believe that it's i do not think that the court sending it back should be taken to mean that the court necessarily thought but they do or do not have jurisdiction there there's nothing to indicate that that question was even necessarily raised to the core element and so implying that it's making a decision on an argument that might not have even been raised seems tenuous to me try asking about the government's reliance on the six circuits recent decision sure i'll tell you i'll tell you what's on my mind you can just react to it one of the things the sixth circuit said see whether you think this makes sense or not is that the notice to appear the use of that language in the regulation use of that term in the regulation is entirely different then the exact same language notice to appear in the statute in twelve twenty nine a one in other words i read this is suggesting the six circle was a no no when they talk when the words notice to appear appear in the regulations that's not at all be read together and harmonized as much as possible and so to say that the use of notice to appear in the statute means one thing but for use of notice to appear in the regulation that should be read with the statute and should be read to support the statute but is still completely different that that it's got to be the same term because the statutory provision being referenced is twelve twenty nine a one which by its terms involves the initiation of removal proceedings and correct can finish off entire argument is based on the mistaken premise that the statute twelve twenty nine parentheses a controlled jurisdiction but as the court like the ninth circuit didn't care and beefy have said the statute does not reference jurisdiction anywhere well can i just say this service to the note of the service of the notice to appear for initiate the proceedings before the immigration authorities i'm trying not to use the word jurisdiction but it certainly isn't initiating document and that is why i think it's probably a claims processing document and you've got both eight c f r section twelve thirty nine point one you've got section two thirty nine of the act you got a lot there and what concerns me about your position is i feel like you changed the word dissenting after justice is name in pariah to opinion of the court and and it wasn't it was a dissent we can discuss how broad or how narrow it is but it seems to me it surely deals with time and place information and you know if the agency hasn't been doing it right then it needs to pay the consequences at least jeff the petitioner has properly raised the point understood your honor if you look at the statute twelve twenty nine parentheses a it says in removal proceedings written notice shall be provided to the non citizen and lists a bunch of requirements that statute is a statute of what is required for notice and service to the non citizen it is not a statute that explains what constitutes jurisdiction before the agency but you haven't properly initiated a case until an appropriate notice under the post regime until a proper notice to appear has been sent and indeed you have clues from congress which did create a tool that was supposed to facilitate properly filling out this form that the agency for its own reasons just cited was going to stop using i can't think of anything more important for somebody than to be told and certainly with service of process in court if we didn't bother to tell you by when you need to answer and which court you're calling to we wouldn't think that was a proper notice and i don't see how this is a proper notice under the supreme court's decision in parama well as the panelists are going to earlier perera deals with the intersection the narrow question of the intersection between two statutes you know that that isn't even just it's only about time the agency seems to want at least two bites at the apple you'll dribble out one part of the notice and one communication and then six months later you know you'll dribble out another part of the notice in another communication for all i know maybe that's just place you're not telling time yet you dribble it out in the third i mean congress doesn't seem to have created that system and if it didn't then the agency shouldn't try to use it well congress didn't indicate in the statute when jurisdiction that that's why the regularised why i'm saying congress says that the notice to appear is the initiating document yes appear in both instances in the difficulty that that i have if you just step back here you say there's a term there's a term in the u s code called notice to appear and it's defined by statute in a way that has certain requirements and attributes with including date time it's outer and if you want to call those attributes collectively the statutory floor ok you've had you have an agency that is that is implementing it albeit for a different purpose that it is a race scene parts parts of the statutory attributes in a way that's taking it below the the floor of the definition and actually seems very odd to me well your honor what we've argued is that the the see no clue that congress if you want to think in chevron type terms intended to delegate to the e o why are any other offices the ability to delete part of the statutory requirements while you're on earth are you going to buffet you could see if it's a statutory for you could see as as a matter of ministry of implementation you're going to require you know other details around notice but how do you go below the floor well your honor we are hearing that they're not going below the floor for jurisdictional purposes what do you mean by jurisdictional purposes maybe you need to explain that because i have this notice to appear initiate the proceeding in which whatever the allegations are going to be resolved and you seem to think that you can initiate the proceeding with something called a notice to here that fails to comply with the criteria for a notice to appear in the statute well that's you know one of our alternative arguments is that the statute doesn't say that all of the information has to be contained within every statute needs to say that here's the list of things it has and by the way we really only dealt with whether that particular non citizen was eligible for cancellation of removal here we have a non citizen arguing that jurisdiction never vested in the first place when we know that he received notice of his hearings he received served with a deficient set of service of process and never shows up in a corner then they aren't bound by an ultimate default judgment because they were never properly notified yeah so there are serious consequences exactly and that's separate from jurisdiction that's a that's a requirement of notice to the non citizen and here's a what it's what's this thing called notice to appear to me it's unique in this immigration system which is a complicated one at best it starts out with a notice to appear that complies with the statute but it hasn't properly started out then why doesn't the time just keep on gives you the authority to define the jurisdiction of an administrative agency as opposed to perceive characteristics i mean i'm not defining it i'm simply pointing to mars are saying you're saying that a series of things that are required under the regulations for jurisdiction the best so before you sit down and you want to say anything about twelve thirty nine point one which explicitly cross references yes to tour a notice i would your honor that you cross references twelve twenty nine only to the extent observed and i'm twelve thirty nine but it references twelve twenty nine only to the extent the stacks of twelve twenty nine only to the extent of service as i'm still as i keep saying that twelve twenty nine a deals with what is required for written notice to the non citizen and the c f r twelve thirty nine point one references the statute in in regards to service of the n c a a not injured jurisdictional ter to two quick points i'd like to make one opposing counsel is too quick to dismiss the statue in this regard we would say that f d a v brown and williamson tobacco record corporation is actually a pretty instructive case they are the jurisdiction to regulate tobacco products and the court said that congress had explicitly prohibited that exercise of jurisdiction based entirely on the statutory context without anything in the language and that statutory cont is exactly what opposing counsel has left out and with respect to twelve thirty nine point one being about service twelve thirty nine point one also provides the specific rule for  counsel will take the case