thank you and i apologize i didn't realize the panel this morning honor this is a an immigration appeal from the hartford immigration court and it really involves three issues initially when it was presented the court two years ago involved one issue really whether or not the immigration judge judge michael strauss you know was made an error and deciding the convention against torture claim of my client who is from indoors who had fears based on violence against his family that was happening down there and secondarily fear connected with his tattoos which were family and religious in nature but he was concerned would be perceived as being related to gangs and therefore incarcerated that was the case and just based on the convention against torture claim we feel that you know dr straus said too high of a standard in the government's brief i believe a page seventeen they refer to it as very high standard and that's common language of the courts the error with that of course is that that very high standard as it's reflected at eight c f r two eight sixteen is more likely than not that's the civil standard fifty one forty nine percent and we believe that on his convention against torture claim he certainly was fit and a minimum fifty one percent more likely than not to have have a or have problems when he was sent back to in duress and be tortured either at the hands of the gangs or by the government and are now are we not limited at this stage to constitutional claims and questions of law to actually get to do we actually get to look back at his factual findings regarding whether or not your client qualifies for the convention against torture only to the extent that he made an error in applying the standard put forward in part to now the two other issues it came up in there because the state of immigration law is incredibly fluid there was a dimia decision which this court graciously gave us an additional opportunity to brief on which looked at sixteen b regarding a crime violence now the government is briefed saying that well you don't need to really consider that because this should fall under sixteen a and to a point agency relied on sixteen be allowed but the agency relied on sixteen b and in our brief you know a we had this issue do we go there or don't we go there and we decided in our responsive brief that we shouldn't go there for a good reason one is it's not there in the administrative record at this stage the charge was it was a crime of violence under sixteen b and in that regard to me is clearly overturned now an important factual thing to understand about this case as opposed to maybe a different case is that we're talking about a lawful permanent resident who of course has higher due process because he's going to permanent resident and the fact that he lost his permanent residence should impress the court to look very critically at the government's arguments that somehow we can just wash over the fact that he was removed under sixteen b and go to a consideration of sixteen a somewhat retroactively so that's under the dime you decision the court really should go back and say to the to the b i a either you decide this or remanded further to the immigration judge start the proceedings over but when we do that i mean is the government argues that this is really a question of constructions of this connecticut statute it construction is not something within the expertise of the agency why can't we do the analysis ourselves your honor you could if there was an adequate record and you know the agency can't have it both ways they can't come into court sometimes and say no no this is our terrain immigration's us you the judiciary stay away you don't you can't look at this and then another occasions come in and say oh actually given that we overlook something given that we didn't give him the process due process through our administrative procedures you can go ahead and just decide this for us today in make it tight that arguments i believe ineffective and really has no no carry in should ha and carry the one thing i want to get to that is so if that wasn't enough if di meo wasn't enough pereira v sessions came out after briefing and that's of course the case from an immigration lawyers perspective just keeps on giving it's like the one gift the date time in place now as a practical matter perera every day in immigration court is sometimes without any real consequence because if you have someone who was served in n t a three weeks ago they're applying for asylum are you really going to challenge the n t a just make the government reissue it no but when you have the government trying to take away somebody is lawful permanent residence and they're charging document in that respect is defective well that's a situation where we really should have the m t a looked at and held to its most strict statutory interpretation is not correct that there was a later notice that provided the date and time of the hearing there was your honor but the record that we have the n t a that was served on him that the one that he leave if i have the record correct in my mind that he was removed and didn't have he was given a hearing notice after the fact yes are you suggesting that an end could never be fixed if it failed to include the date and time of the hearing of course your honor because first of all that's what the supreme court has generously informed for was a stop loss calculation for purposes of cancellation of evil so let's i'm not sure that we're going to be extending it but correct but there is it's almost poetic where just a sort of my aura says n n t a that does i and i understand that there's huge consequences because we've got fifteen or twenty years of n t s saying we'll get to you later i understand that but from the supreme court's view and pereira they're saying listen you have a statutory document it meets it needs to meet the statutory requirements so i respectfully disagree with that view that you know or even the agency's decision and bermudas codas that somehow we can patch it up later because that actually applied under the old law not to get into the weeds here but that of that was the situation if you were removed prior to april thirtieth one thousand nine hundred seven because the old statute and again i'm getting into the weeds but the old statute said you know you could attach the hearing notice as long as you receive the hearing notice later so congress very clearly changed it and this is what we have thank you which it can reach other legal and constitutional issues in this case contrary to my colleagues suggestion the court can in fact reach the sixteen a question in the first instance on its own for a number of reasons not the least of which is the court abides by the doctrine of futility as an exception to the general rule so despite the fact that the immigration judge herself relied only on the sixteen b determination the question is whether petitioners in fact removable as an aggravated fel under a separate statutory provision that is not specify a charge based on sixteen a or b either way he's removable and the court can reach that question in the first instance because it is a question of law the court reviews de novo and is not informed by the agency's expertise as judge lewis and pointed out the board in the i j a have no expertise on interbreeding connecticut statutes or the federal criminal statute and so despite the fact that the sixteen a shoe was not decided specifically by the i j a or the board and not to mention the fact that petition didn't raise that issue on appeal to the board and therefore failed to exhaust it the court can and should decide for itself that as a matter of law this connecticut conviction is a crime of violence under sixteen a and frankly your honor that decision or that issue is now controlled by circuit precedent the when the wave is an intervening decision in which the court said that the identical violent felony definition under the way this connecticut statute falls within that the elements clause the use of force clause force clauses are almost almost identical and we did say that it is categorically a crime of violence under nine twenty  but we haven't said that in a published opinion with regard to the statute with regard to sixty days that's correct but there is a statement in vela no way of accepting the petition or the defendant's claim there that sixteen essay and the a are identical and the court in other contexts has equated the two so and i find it very telling your honor that there has never been a claim from petitioner that his crime is not in fact a c o v under sixteen a he wants to sort of confess and avoid and say that the court shouldn't reach that issue because the agency did not and to answer his argument in fact in this context your honor the government can't have it both ways there and there may be issues factual issues that if the agency does not  cide the ordinary man rule would require the court to send it back so those issues could be decided in the first instance when it comes to remove ability particularly post mathes the court can and should reach these legal issues in the first instance because there's nothing more for agency to say particularly in a case like this where the result would have to be controlled by binding circuit precedent so with that your honor because petitioner is removable as an aggravated felon the court's review is limited to constitutional legal claims under the statute and with regard to the only application submitted below the cat claim there are no reviewable colorable legal or constitutional claims  really all he's quarrelling with is the agency's underlying fact finding in the way of the evidence and that is some simply something the court cannot review in the context of this case if there were some sort of what he just said to me today was that there is a question of law because the i  used the wrong standard making these determinations do you agree that use of the wrong standard would be a question of law that we can review and do you agree as a factual matter that his analysis of the decision is correct because your second question your incorrect legal standard would be reviewable legal question right but the court has made clear that it must distinguish between legitimate legal claims that require review on the merits and sort of the implication of the same sort of legal rhetoric that might sort of dressed up fact finding just determinations or disputes in a legal garb in which case the court wouldn't have jurisdiction so it's difficult to say on whether or not the court can just so or should just say ok we'll call that a legal error but will dismiss it as lacking merit in our view petitioner fail to raise a colorable claim in the first instance and the court should stop at the threshold and say we don't have jurisdiction but in any event your honor the government prevails because there is no legal  here the i j a did imply employ the correct standards cited the correct regulations and statute in control also cited controlling precedent the board did the same and so there's simply no indication that the agency went outside the context of  cat claim and applied her misapplied standard what about the pereira argument that decision properly understood has to extend beyond the stop time rule frankly on or that interpretation is simply wrong and the ninth circuit very plainly and persuasively laid out recently why in carrying the and they in doing so they joined the sixth circuit the only other court of appeals to directly address the prayer issue in a published opinion as well as the board who issue presidential decision a matter of commuters kota in saying that pereira simply has no application to a case like this and it's not just because your honor that this is not a cancellation case that involved a stop time rule that certainly is one aspect of the government's position but more importantly what petitioner is trying to do is it is graphed a broad jurisdictional ruling onto what was a very narrow decision in pereira pereira's hook was the interplay or intersection between two specific statutory provisions the stop time rule in the cancellation statute and its own cross reference to the statutory definition of a notice to appear in twelve twenty nine a the immigration court's jurisdiction by contrast is controlled by the relevant immigration regulations which say nothing about a notice to appear having to include a date in time of proceedings jurisdiction vests your honor when an n c a a that complies with the regulations is filed in immigration court those regulations say nothing at all about the statutory definition of a notice to appear in twelve twenty nine eight vice versa twelve twenty nine a says nothing at all about the immigration court jurisdiction and again this is laid out very plainly in carrying the idea is that you can basically have two notices to appear in terms of the definition the regulations define a notice to appear one way and when that document in this case the document that petitioner received that did not include the date and time or for seedings when that was filed with the immigration court jurisdiction vests now that same document could not be used to then cut off his period of continuous physical presence if he had plied for cancellation but that's not relevant here and nations refer to jurisdiction vesting upon a charging document being filed and you're saying that the charging document refers to the  upon which pereira tilted has nothing at all to do with this case and i mean mr formica sort of acknowledged the sort of breath of in the flick asians from his argument that prayer should extend to any and all notices to appear and therefore void ab initio all of the proceedings that followed is simply too much for that narrow decision to bear and again i suggest that the court should join its sister circuits in rejecting that claim with the very strong caviar that i don't have any more specific in from nation from my colleagues a d h s the anything i'm about to say should not be taken as an affirmative you know declaration about what may or may not have happened i can only glean that from v h s what i do know is just these facts the stay was filed in october twenty fifth we opposed in early november the petitioner apparently completed his criminal sentence in connecticut in march of and sixteen he was then transferred to ice detention he was held in hartford for about a month he was moved to oakdale louisiana where they stage and then he was removed on april twenty ninth two thousand and sixteen now at that time the court had not ruled on the stay it was pending our opposition was pending but the governor sorry the court did not rule it was about two months later that motion in late june twenty sixth scene was actually submitted to the panel or  and then seven months later in january of two thousand and seventeen the court got around to granting the stay i will just point out your honor i don't think it's any coincidence that the state was granted on the same day to my it was argued in the supreme court and the ruling you know asking the parties to address that sixteen be constitutionality issue sort of i think maybe not to explain but certainly gives context to why the court granted the stay in the first place my time's expired my continuing to question your honor i think all i can glean from what i know from v h s and again we are more than happy to delve deeper to figure out what exactly happened but it simply seems your honor that this was some sort of administrative error or oversight where the deportation officers are in control either didn't know or didn't recall that a p a far and stay motion were pending you know again it may be cold comfort but i do point out that i do think it is a distinction with a difference that no state was in place at the time he was removed and the fact that he's now return to the united states and is in a criminal proceeding is ironic in a way because it also gives rise to a potentially new claim for relief and protection down the road if he's to be removed again but it does appear that there was some error on behalf of the government there your honor but it doesn't affect the merits of this case in any way and it shouldn't stall the court's adjudication of the case thank you your honor just reply what's important to keep and as i said before this case involves the government's burden trying to remove somebody who had legal status so the m unlike in a situation as i had said before like someone who had just come in three days ago and or three weeks ago and then came in this is their burden it's not the respondent or the petitioners burden to say don't deport me it's the government's burden to say we can remove you and so that burden goes to the initiating document which would be the n t a and i don't think it's any takes any imagination or really any stretch to say that when the supreme court said that you have to follow the requirements of the statute to have a valid charging document even more so than in the circumstance of a stop time rule when you're taking away someone's lawful permanent residence you really need to make sure that n t a is meeting the grounds  statute so i think that if you know not to speculate but i do think that if this case was to get out the tud it would be found that particularly more so even than a stop time rule situation the  has to meet the statutory requirements the other thing is the flipside of that as for twenty something years i've argued against the statute right because the government always says we're going to hold that immigrant to the letter of the statue in fact even in this case where the government's trying to say it's sixteen a even though we said sixteen b you should hold a letter of the statute so how can it be on the one side we're holding the immigrant to the letter of the statute and we're not going to hold the government we're going to allow some you know swimming room to say we can fix this we can we can fix this we returned it to the court now jurisdiction best's the final point in terms of my client's untimely removal happening on the day i know that  attorney mcmanus had nothing to do with it at all in fact he generously informed me because i had lost touch with my client in the wilds of and dorris for many months but i do think it adds additional import to this case because he was subsequently convicted of having entered and he had exited claiming a fear so without adding more to that i think when someone is under someone's claiming a fear of a place that they're being returned i think the government has a higher burden to explain why they would remove the attorney mcmanus of course but d h s thank you thank you beth i will argue we will