second is the evidence that compels a reversal of their denial of withholding and the third is are the supreme court and cases that i have done a fight in my twenty eight j letter supreme court case of career of the sessions and the case of matter of bermuda's cotai which i understand has now been appealed to this court in pereira the court said that the notice to appear the m t a that triggers the case is not does not vest jurisdiction with the court if it does not state the time and date of the hearing and in this case miss carr and get these and does not state the time and date of her hearing me i just inquire a couple of points on that  have jurisdiction to consider it now or would we need to re mandate to the b i well i believe this court always has jurisdiction to consider subject matter jurisdiction  in the alternative it could be remanded to the b i m as karen de thief did file a motion to reopen with the b i a based on pereira that was on july seventeenth and that is still pending how should a decision and in fact  i would say that in this case if her and he a were terminated and a sufficient one were issued she would have a very strong cancellation a removal case based on her us citizen autistic daughter and her marriage to a us citizen and those things were all laid out in the motion to the be ira why wouldn't though as a practical matter looking at bermuda's kota if someone doesn't get notice if the initial notice doesn't give you a date and time but she showed up for the hearing right that's correct though why wouldn't a kowtows control it's the plain language  is what the supreme court said that it is not best the court would subject matter jurisdiction and that is not something that is based on notice but is based on the statutory requirements of a notice to appear and so you don't think that prayer is really limited to this step clock kind of situation that was involved there that is correct and also i would say that even under bermuda time rule that's triggered by the m t a did not apply however as i said in miscarriage gave this case she would have a very strong case for cancellation of removal and we did argue that in our motion to the b i thank you  the next thing i wanted to discuss is the one year rule and since the b i declined to make a credibility finding we presume miscarrying heathy credible and so the undisputed  i interesting day it it said what we don't have to we don't have to decide whether the i j a credibility findings are but then when it got to the question of voluntary departure it did find her not credible and did find for example that a marriage was a sham marriage so there are finding s they go to it somewhat to credibility they just don't go to the questions of asylum that's exactly what i saw and that did puzzle me but i do see that they accepted all of her facts as stated in their determination for the one year deadline and the only place that they questioned her facts was to adopt the i g is finding that her tourist visa interview she had said she was married when she was not and on that basis the judge said she was not eligible for voluntary departure and the d i saw no reason to reverse that decision but in terms of making the one year decision and in terms of the withholding removal case they accepted her testimony as factually accurate and made their decision based on law without any disputed facts well the question as to whether or not she lied in that initial visa application as to whether she was married or not that was relevant to the i j a only to the extent the i j a considered an earlier lie and evaluating the credibility of her story to bore on cancellation of removal so i can understand how the b i  could simultaneously say well she appears to have lied with respect to a marriage but then for purposes of this decision treat as true everything that was directly relevant to her cancellation removal question not true at her tourist visa interview about being married she explained why she said that and the be i found that that only really this is assuming everything that she says with respect to what's in it for one of us right now so me everything's true how do you get where you need to get ok great so the undisputed facts then are that seven months after she entered the us she married a us citizen and they went about filing the applications for her legal status in the us the visa petition application to adjust status to permanent resident and before they filed those they went to talk to a consultant attorney but a consultant and they said you know we're looking into asylum because probably she's afraid to go back and the consultant said you don't need to apply for asylum you can apply for just a list that is based on marriage to a u s citizen and the judge even says that that's not necessarily bad advice and i would say that that's very reasonable advice i would say in fact any reasonable person you know is that if we get there that only gets us to be eligible to apply for asylum yes you've still got problems with ok what's the story she's telling about what happened to her before she comes to this country and why she has a fear of going back yes i think the for asylum is pretty important and that the b i and this case recognize that based on the record her fear could be well founded and also that her the harm she feared would be on a protected nexus so it seems to me there per they're saying well we think she'd be eligible for asylum but we don't care because she didn't meet the one year deadline so you don't qualify for withholding yes i also believe that we know that that's a higher than titanic and it's the same is the same facts so if you're just telling us that all of this turns on whether or not she's going to satisfy the one your criteria for asylum then you may be conceding that she's not eligible for cat relief or withholding i thought you were arguing with holding i'm definitely are you going to tell us then why the record compels a conclusion contrary to the one with the b i reached ok so  this case we have a kikuyu woman who for one thing when she was in high school was in a locked school what this this is your client is in her forty's she is a mother she has been at least in a common law marriage and maybe two marriages and why would anybody in kenya have interest in f n performing after you have on her at this at this stage that conclusion and i don't mean to be piling on but i want to make the question as hard as possible so you confront everything all at once and she's christian and the uncle who was apparently a member of the mungiki organization that was so active it he appears to be dead ok so and then you can add to that that this was sixteen years ago with respect to the women in which is not necessarily this individual so you have now kind of a larger fact pattern yes so that is all you  confront all of that so do your best so we know that her mother was jack did against her will to f d m as an adult we know that her aunt was subjected to f g m when she was sixty five years old that's against her will and her mother refers to another woman who was seventy when she was subjected to g m and we have a statement that's much publicized from monkey that they believe all kikuyu women between the ages of thirteen and sixty five should be circumcised i do see that i'm out of time now your thank you thank you very much i'll give you a minute for rebuttal i thank you that in mind thank good morning you may please the court greg mack counsel for the respondent the attorney general of the united states swedish the court to deny the petition for review and i will focus my limited time on the withholding of remove a claim that seems to be the one issue that's most pertinent here and as the court is aware  women in kenya so that's directly on point and i don't believe that petition responded to our twenty a j letter at all i think overall i think petitioner had what other women who were able to avoid have g m in kenya record it notes that her husband colluded with other women to impose f g m upon her so as to older women there seems to be an element of family or or tribe or religion with respect to the imposition of f g m or in this case those those things aren't aren't aren't part apparent here and of course the record doesn't compel a contrary conclusion here and the record also points out at page one hundred thirty of the record at the state department also points out that g m is traditionally imposed on younger females so if there's no further questions we have the courts to deny the petition for review but your position on pereira position on per hour is as the court noted it hasn't been exhausted here and there's really no prejudice here because she didn't show up for the subsequent hearing so where is the prejudice and where's the harm in  think is clearly limited to the facts of the case it was dealing with the statutory construction of the n c a a rule and the statutory rule with respect to stop time the regulations tell the tell the immigration judge when the immigration judge has jurisdiction over a case and that's with the filing of the n c a a but again there's no prejudice or harm here that could have been raised before the board because the n c a a was available to petition or below and if they wanted to raise that claim they could have raised it before the board in the board could correct it if it goes to subject matter jurisdiction as opposed to personal jurisdiction and it can be raised any time well this isn't personal jurisdiction and constitutional claims even though the board can rule on constitutional claims it can still require that procedural  be raised to it so it has an opportunity to correct that so we're not talking about personal injuries diction we're talking about the courts overall subject not interested that's right which is why i'm suggesting that it can be raised at any time well not a not a not a procedural error that the board has an opportunity to correct twelve fifty two d one says the board is entitle to have issues exhausted before before the person comes to go to the court of appeals and assume for a moment the perera applies in this circumstance which of course it may not but assume for a moment that it does that the prejudice you can say well how were you prejudice by not having it in ca with the date and time in it because you showed up at subsequent here but but if they restart it sounds as though we will be on a somewhat different position including with evidence that will at least give a plausible argument for withholding of removal that was not in front of the board at that time so it'll be it'll be a different perceiving it will be a certainly would be a different sitting assuming the facts of your question your honor but i think that also i think as we point out in some of our paper in our papers that if you go but but i'm damn asking a question about curing if it applies and i'm because i'm not sure it's easy to get to cure i got a second question different pereira to one side should we wait to see what happens with a motion to reopen i say no i think you go forward with you at least have the withholding issues to resolve in this case i don't think you should wait for the board to resolve the motion to reconsider because just can always come to this court and ask the court to review it if the board denies the motion much in in the papers here to argue that either side i mean i can i can kind of make up the arguments on both sides i can see it but we really don't have much room and i think the court to deny the motion to continue the case pending i guess the motion to reconsider and i think if the court wants supplemental briefing on the thank you ron or in this case i want to point out that after a miscarriage the return from school she went into her home and she actually stayed in her home for about six years she was afraid to go out she was would get her if she got a job so she hadn't her home she was afraid to go out to the market and in fact when no one else was home she was afraid to be alone so she went and stayed at a friend's house that she thought was safe and sometimes maggie came to her house and broke in and she had to hide underneath the bed and pull with piles around her so i believe this to show past persecution and also the idea that monkey was really targeting her and looking for her i would also like to point out that i believe the the b i relied on the fact that she had not submitted an application yet to overcome the one year rule there is no deadline for an adjustment of status application and they tried to take that and the test actually is reasonable ness which is in the government's own training manual at the record at three five eight thank you thank you the case just argued is submitted i think both counsel for your argument this morning the case next on the calendar for argument will be united states versus right