sent to the non citizen this two step process was not followed here mr mendoza sanchez was served in person with an undated notice to appear a hearing notice dated may th two thousand and fourteen announced that he would have a hearing and fourteen this notice was not properly or timely served on mr mendoza sent us the certificate of service shows that it was given to an attorney or representative but also on that form there's a field for the attorney or representatives name and a type name is crossed off there and no additional name has been added both the statutes and the regulations demand personal service to non citizen of this information and if such service is not possible service must be made on counsel of record there's no suggestion here that that service was made although mr mendoza sanchez's appearance was guaranteed by his detention he missed the chance to have other important right the statute requires that there's ten days notice between the notice to appear and presumably date is notice who dated notice to appear and the actual hearing and this time which prayer recognized very important is to give the non citizen time to properly prepare for the hearing to find an attorney and to ensure that attorney is also properly prepared this time and place information is so fundamental and so critical that mr mendoza sanchez does not says the defendant received a notice of hearing telling him that the removal hearing would take place on june th but there's no more sort of specific argument about this is the standard should apply because this wasn't raised below i would say that any fact findings that were made  saying be the government read brief doesn't take me to task for the not having already below so we can ignore the waiver that's part of your him but i do also think that this information is so critical and the error is so important and also at the time that client raises this issue below pereira and everything circling around it is still very much a moving target and now there's you know almost every circuit has weighed in on things now and now we are at a point where we're looking at hearing notices and i think that the focus below simply was not in that place but if you look at the hearing notice it facially clear that it was not served on mr mendoza sanchez and that there is no proper service on  attorney that would ensure that he would have gotten this information and then been able to prepare or find another attorney or find an attorney at all it certainly there from the record who could then represent him at that upcoming hearing and if he d mostly about the opportunity to prepare to make sure that you have an attorney if you're going to be represented to make sure that attorney has the time to find out about your case figure out when he's to be done prepared any claims for release that you might have and that it's that's actually mentioned in the statute and if you go ahead and attend the hearing and don't raise her objection to the adequacy of the notice to appear or that you would then have lost that challenge i don't think that's correct especially in a case where someone was detained  because the right to issue here is not solely the right to appear and that's specific in the statute and in prayer that we're talking about the right and the ability to find a lawyer be properly prepared and that for that opportunity to be meaningful you not only have to get this notice but that's also where the ten day time period comes from that there is more to because you know many people who are in removal proceedings are detained and there's more to it than simply appearing by virtue of the fact that the government agency will bring you they could just they you know for all for all the record shows they could have just pulled him out this morning and said hey we're off here and he would have been appeared but his ability to notice that he needed to get a lawyer how was that in any way less than adequate the new usual kind of compliant noticed with so career of talks about that and it specifically talks about how you know if an undated notice to appear is sufficient there doesn't need to be that if i needed to appear is sufficient that sort of all that has to happen then you could have someone who sort of knew that these proceedings were happening out there but didn't know when and didn't know whether they needed to find someone and you could have sort of two alternate situations that will both be bad because someone who got an undated notice to appear in the very next day got a notice for hearing that they were having a hearing in three days and they had a very compressed timeframe you could also have someone who got a notice to appear and spent years just with this notice to appear hanging out there and didn't have an attorney sort of on notice that no now this is new you need to focus on my case and prepare for my case now and the fact that mr mendoza sanchez is detained should not impact any of the rights accorded to him in terms of having the same amount of time the same opportunity prepare that anyone would have jurisdiction and i would just like to suggest that i think the question in that footnote is too broad that this doesn't have to be a ruling about broad agency powers and wouldn't agency can probably do that this is a question a very narrow question of can the agency set up this particular rule this particular rule being as this court adopted bermuda's cota you know order to start a court proceeding there have to be some rules for what starts jurisdiction what makes that case actually happen and well there may be some rules that the attorney general could not promulgated you know for example the attorney general likely could not promulgated a rule that said we only have jurisdiction over non citizens from canada that's not this case and this case doesn't need to be that broad there's a narrow and important space here this court determined that the statute does not set out jurisdictional rules so there's a gap there and the agency can and must f here there was no properly served hearing notice jurisdiction did not cast the order is a knowledge and it cannot serve as the basis for his criminal conviction and he should have been allowed to vacat e argument that you're making now having tried to switch horses in light of are his on his decision wasn't that argument available to him at the time that he pled guilty and twenty six d argument or about the argument that he didn't get notice of hearing therefore i wasn't able to get a lawyer so just to drag to the hearing so shouldn't have been held to have given up anything  a substantially changes the landscape and that happens after he pleads guilty and you know the standard for with trying to plea is for any fair and just reason and it's supposed to be liberally coat and you know he because he's it detains he does appear sort of the complications about what he could claim when he could claim it don't become apparent till pereira and the being able to withdraw your plea is a like you say it's any fair and just reason and here where he is saying look this pereira case came along and it led to this series of dominoes that made me realize finish  good morning cept a fan for the united states what i heard and the argument that was just presented was sort of the st part was there was some unfairness alleged because i didn't get the notice and then be because the immigration court entirely lacks subject matter jurisdiction because the nose to appear did not have a date in time and the question was are we talking about the statutory notice to appear whether regulatory notice to appear and the question in this court said that in the book club this case that the regulatory notice to appear requirement is the one that governs and it doesn't require that there be a date in  the court at the end talks about the new just protests but be the entire analysis was that this immigration court has subject matter jurisdiction in a notice to appear under the regulations was filed now there can be relief offered to a immigrant anyway and who doesn't get a proper notice to appear under the statute those those concepts are separate that's what i thought was most important is what makes this a little confusing is unhelpful we the same label has been used for two different things the st thing is a notice to appear under the statute that has to be sent to the alien that has to provide date time place and there may be arguments that can be made of one of the circuit said it's not too nice a view importance of that document if but it's not the document that provides that commences the case the document the commences the case is the regulatory knows to appear and that document doesn't have to have the date and time that's what can clog this so that doesn't mean that there weren't arguments it could have been raised about not getting certain kinds of notice but that's not a matter that makes one thousand three hundred and twenty six d disappear which is the argument that the defendant wants to make here and he he concedes he can't meet the requirements  not a court this is within ministry of agency and when it makes a mistake when it does something wrong there is no distinction that the law recognizes between subject matter jurisdiction mistakes and other mistakes there are mistakes and they can be fixed by courts they're acting outside their enabling statutes that makes their action alter of erase but the same way that the courts are said to follow up to that is if you don't raise or complain death to the agency subject  do with this case cited by an agency secondly as several a court of appeals of hell this whole area is not about subject manager stiction the even assuming that a relevant concept here because subject managers stiction is the power of the court or or a here article article one court to decide and and this is the claims processing will this is just telling you how to start a case a case get started in an immigration court with a notice to appear just like a case in a federal court that started with a complaint but that's not good that doesn't go to the subject matter jurisdiction and if you look at the regulations we're talking about they specifically say their whole purpose is for the prompt in or are we dealing with immigration proceedings it's all about the manner of procedures so that so this isn't even the best it's not a subject matter pointed out some features about the document that that maybe he didn't receive it there's no affidavit from him saying he did he didn't we just have the features that has been pointed out he did show up at the hearing whether he did or didn't i think that's the bottom line because that certain features have been pointed out there's nothing that i'm aware of from the defendant himself the district court made a finding he was at the hearing but that all goes to i guess that's my final point that all goes to the fairness of the proceeding in one thousand three hundred and twenty six d is a provision that suggests that if in certain ways your removal proceeding was fundamentally unfair you can challenge that in says bermudez kowtows is it is reasonable that that is the agency has determined how it takes jurisdiction and it's this two step process that to me is clear in there that this is that's what is the current law and so we need to now look at whether the two step process was followed here and i do also want to be completely clear that i am arguing that this order deportation was a complete melodie fairness concerns this whole case that's not going away but i am arguing that the court was completely without the immigration court was completely without jurisdiction to issue the deportation notice because of these failures and what about the district  or he knew there's no district court explicit finding he was properly served with this it was given to it was handed to him by a corrections officer or it was handed to his lawyer who then handed it to him and i think that think goes back to some of the attempts to leave just to a change in couple truck it was it was not part of the record below but i also don't think that this is ultimately a question of whether or not mr mendoza sanchez himself actually knew this is a question about following important jurisdictional procedures that ensure that across the board of all of these cases that people are getting what pereira called the most important piece of information  at all hinges on the contention being made on the people that he wasn't sure yes but it's about the service which is a turd this generalized proceed here that needs to be followed and not so much about what happened to this individual that pereira is talking about these are procedures that have to be followed to ensure that across the breadth of case people have time and date information thank you