thank you council again on behalf of the panel we thank you for being willing to participate in what is still unusual despite these unusual times and we're grateful to be able to have to have a conversation with you about this  pro bono council on behalf of petitioner with the court's permission i'd like to reserve five minutes for a bottle that we granted may please the court it cannot be that petitioner can be ordered removed from the country for failure to show up for his removal proceedings when there is no evidence in the record that he ever knew where or when to go when he never had a hearing to explain why he didn't show up and when there is evidence in the record that he never received notice of his proceedings are you able to help us understand why there are two notices to appear one that appears to  lack a location even to where to send a change of address and another one that has a location on it i don't know why there are two notices to appear in the record your honor and part of that is because  is the one that filed that nd annotated copy the copy that petitioner filed in this case was an exhibit to the b i appeal brief and that was the copy that he had the only time that the annotated notice to appear is in the asked file that copy so i don't have an answer to that but to your point your honor if you think that that is a question that needs to be answered that's the exact type of question that could be answered at a hearing on the merits which is the relief that we're seeking and i just as you know been there it looks like to be i already picked which one of those that it found persuasive been attached the one that it used exhibit one in exhibit one looks to me i i mean it is not governed by substantial evidence and that is your honor but the b s a based on this decision it doesn't seem like that's the copy they were a lot on and that's because the b s a determined that written notice was not necessary in this case and in coming to that conclusion the b a s said it determined that petitioner failed to fulfill his obligation to update the immigration court with his new address when he moved from new jersey to for genya and that's that goes to show that the b s a assumed that the petitioner ever knew the location of the immigration court so the b i can say that it relied on the blank notice to appear but if the decision rests on the assumption that petitioner ever knew the new york immigration court location then it follows that the b s a actually relied on the annotated copy and regardless there is no evidence in the record petitioner ever received that annotated copy it is noteworthy as your honour's have pointed out that what's written on the annotated copy is the location of the immigration court which is the one detail that petitioner needed in order to fulfill his obligation to update the immigration court with his new address and to testify from that it is the i'm sorry let me just push back on that because you say the only thing that  needed is the address of the immigration court and are you sure i would just say this are you sure because on either of the notice to appear it says and i'm reading only next or you must notify the immigration court by using the form e o i n are thirty three whenever your change address or to whenever you change your address or telephone number during the course of this proceeding you will be provided a copy of its school so it strikes me that if your client had a copy to form in then then that form oftentimes has the return address on it and it doesn't matter if there was an at risk me into you or not and it seems that the way that your client can avoid the service issues is to keep the updated have thank you your honor so to your st question there is no evidence in the record that petitioner ever received a copy of this yellow i r thirty three and i agree with you that the language on both the blank and the annotated copy of the notice to appear says that he will be provided with a copy of this form but that's nowhere in the record to or nd question respectfully i disagree that he could have just figured it out if you go on the the immigration court location so that he would have known which form to click on on the web is an event but but but but but i think my point wasn't that i fear what you're saying there that's too much of an obligation to put in your client my point was if  he received one of these forms that was in fact repopulated then it's harder for him to claim he didn't know the address because those orms are indeed repopulated with usually return address as to where to send that was my point address of the coroner that was pretty populated with that information then he would have had the information he needed to fulfill his obligation but there's no evidence in the record there's no form in the record that indicates he was ever provided with a copy of the farm if he got one of those then it really doesn't matter if which one of these in t a's the one with the entity to the uninitiated works because he had under both potentially the form that could of course iana and which is something that we didn't get when we filed the motion to reopen before the immigration judge and we ended kate ed that we needed an extension of time so that we could supplement that motion after receiving the foyer results and getting the complete a file at the immigration judge still denied the motion to reopen and wasn't moved by a request to just get more time so that we had access the file so your answer i guess to follow up on what you give the saying is if you evidence in the record that is pretty pottery populated form was available your argument would be more difficult to make under the notice to appear but you're telling us the record is silent on whether the e i i r thirty three was ever given to him not correct i wouldn't say that the record is silent and i think because there's no evidence of that in the record because that preprocessor lated form does not exist that evidence in the record doesn't support that he got that far whether or not he had gotten the change of address will your honor it's unclear from the record what exactly has a file contain so i don't think it is safe to assume that the file contain anything or what's what's clear is that the documents that are available to us does not indicate in any way that petitioner had a pretty populated farm or ever knew of the immigration courts address to be able to fulfill your obligation of sending that far he i o i thirty three did she have that in front of her your honor it's unclear from the record well you know record what was submitted right we know what kind of briefing was put together and did the due d o j the attorney general problem for you because it was put on by some court clerk how do we know that this copy was the one that was sent to the petitioner he contends it was the onion and stated one your honor ultimately it doesn't really matter for the issue the only issues before this court which is  so what would happen is if someone if the immigration court has jurisdiction but the petitioner has no way of knowing where to send a notice or gets ill why are thirty three form file i need to continue it's to get more information about what led to this ultimate order so i'm not sure you're reading it so strictly you're ignoring kind of other things that that also accompanied the request for or should we just ignore that that they were looking for evidence your honor petitioners in his motion to reopen makes that request pro to pour on for a view to supplement his motion and essentially a request for a continuance after the fact asks ask for it stating that he submitted his emergency motion upon information a belief that he did not receive proper notice of his hearing despite providing us with the correct address so his entire motion is about he did not receive was incorrect the court had jurisdiction and that that there's been a constant theme from the motion to reopen and when you look at all the supporting documents it will have to do with due process and i'm not sure that you're asking us to ignore that your honor what i'm i'm not asking you to ignore the due process issues but i do believe that there are due process issues that were preserved in this case and raised to the agency that the question of leave to supplement but the motion to reopen is certainly one of them what i'm saying is that this court does not have jurisdiction to go into these notice issues notwithstanding petitioners attempts to reef karim you notice issue after due process issue versus nicely did let's assume we do how do you explain the choice between these two notices what is the evidentiary basis to conclude that this petitioner received one that had an address on it and one and and over the other that lapse what do we have here on if if we are going  if we are hypothetically going into a world where petitioner did raise the notice issue either as a straight needle issue or is it you proper procedure through process issue before the agency i can't speak to it i think it's because he simply couldn't raise it but if we're talking cannot explain that there are why there are two i can't give you my my thoughts that to me it looks like a court clerk may have me the education and that doesn't necessarily mean that there's some nefarious purpose but d h asked me to even if you just we know that he received this one as opposed to the other the record doesn't seem to allow us to evaluate whether there's substantial evidence as to which one he received your honor again i speaking hypothetically i'm not quite  i mean i don't know i keep fixating on this you know i or thirty three i mean it strikes me that if you receive in our thirty three with the end then we don't really have any issue here because he would have got that he would have the obligation to send that back in especially with three populated but the issue it leaves from a due process perspective not from a jurisdiction perspective is we don't have any evidence that he got that or when he got that it creates kind of a strange situation of there might be a no man's land where it be in could change addresses before getting to give an address and then just simply abandon an address or never have that address in the st place and then claim that he did not receive notice of his hearing because even though he received personal service of an n c a a the and he could never be perfect with the notes because then his obligation to update would be immediate with his receipt of an interview with or with him into it with or without date and time for so long your honor the obligation to update is not high like petition again your honors the procedural history of this case really bears out that this is our this discussion that we're having about notice in this case and about the procedural due process in curry related to notice in this case was never raised before the agency  and his end up central move all orders should be rescinded for lack of notice and those arguments were made both in the b s a appeal and the emergency trio opened for the immigration judge we also argued before borth both courts that their reliance on honor so st petitioner a c the notice that petitioner received was n for am and his end of central move order should be rescinded for lack of notice that is in the b s a appeal of the immigration judge motion to reopen denial in the brief there we even say that to handwrite a critical piece of information and after service of the documents belies the concept of service that is on a r any emergency motion to reopen before the immigration judge counsel noted her belief that petitioner did not receive proper notice but emphasize that she didn't have access to the evidence necessary to flesh out this argument and that's an important point because here counsel didn't get petitioners for your results until after the emergency motion to reopen and of course she had those documents before she filed the appeal before the b a a but the arguments she did make  process rights i can provide those sites if you'd like if not i would just conclude by saying that this is why and hearing is necessary in this case is to answer the questions that you asked of both me and opposing counsel respondent conceded on page four of its brief that it's unclear from the record that as a concession your honor it is unclear from the record where the notice that petitioner received was the copy or at the location of the court was to be determined or the new york immigration court and that's exactly why we need a hearing in this case d h s s is the only party that filed the annotate copy and petitioner was the only one that filed the blank notice so it actually is clear your honor who filed which copy