and trusted to the sole discretion of the department of homeland security so two is the decision about when to initiate those proceedings as this case illustrates  decision about when to serve a person with a charging document the notice to appear in this case will often dictate what types of relief are available to that person in removal proceedings the precise timing of a notice to appear can quite literally mean the difference between a virtually guaranteed deportation st is the chance of being able to plead your case before an immigration judge with the hope of being one of the very few who is able to stay in the country with his family no where in the i an a or its regulations are immigration judges given the authority to share in this prosecutorial role deciding when to start remove proceedings and when to cut off benefit eligibility that's a good thing it wouldn't be a fairer system if the adjudicating body itself could impact a substantive eligibility for congressionally authorized forms of relief from  nevertheless the government's position in this case allows just such a usurpation of prosecutorial authority that two step process it advocates allows an immigration judge to quote unquote perfect  prosecutor's deficient notice to appear and stop the accumulation of presence in the us needed to qualify for cancellation of removal not only does this two step process violate the separation of powers in a deportation proceeding granting the court the discretionary authority reserved for the prosecutor you know also violates the plain text of the two relevant statutes which both call for a singular notice to appear it ignores the legislative history of the immigration charging document which previously explicitly allowed for the service of two separate documents but now doesn't with word chevron  did it and i know that we have to meet somewhat arguably ambivalent case law on the permissibility of using legislative history of step one but how would that even work let's say you're right about somewhat of a proxy for step one we don't look at legislative history so why does legislative history have a bearing on step one and else i would disagree i believe in the step one analysis all the tools of statutory construction are available to the court to discern congressional intent i think we start with the language that's always a good place to start and here if we simply look at the language i have two statutes that both refer to a document in the singular  rule that's in the definition of a notice to appear but given that that might not completely clear up the issue and my opposing counsel has made some arguments about why the use of the article a doesn't always mean that something is in the singular and sometimes are for the plural we look beyond that and that's where we go to things like legislative history and i would point out again that the charging document previously used prior to one thousand nine hundred and ninety six called an order to show cause was exactly like the current m t a it requires a host of critical information for the person in removal or deportation proceedings but there was one difference prior to nine hundred and ninety six the statute explicitly allowed the agency to serve an initial charging document that has all the critical information and then has the option of giving that  document with the time and place information but that caused a lot of problems and with iraq i read in one thousand nine hundred and six it's clear that congress wanted to streamline the process and they wanted to prevent immigrants  proceedings from stalling from playing off the clock and so they created stop time rule and to make it as simple and efficient as possible they wanted all of that information in a single document and that's going to stop time the quickest i mean look at mr pereira's case we're talking a lot about mr perera he wouldn't be here today and i would point out that he's a green card holder and on his way to citizenship he'd be gone if the government had simply complied with the statute the statute says all of that information including time in place is on the initial initial document and had they done that mr prayer wouldn't have qualified for cancellation of removal that agree though that in pereira the supreme court did not address the two step process used in this case so this is an open question isn't it whether the notice of hearing could cure any problems with the notice to appear yes it did not completely answer that question i do believe that perera significantly narrowed the playing field for the government there are certain arguments that they simply cannot make anymore they cannot make the argument anymore for example that a deficient and to get on its own stops time that was what a pereira was about i think it will be difficult for them to make an argument without addressing the pereiras use of the definitional model to say that when congress was talking about the m t a they weren't just talking about a collection of information they were defining a document but yes i agree that there's a narrow window through which the government is attempting to crawl saying to think lee it didn't exclude the use of two documents that together would constitute an end well then that then coming back to the statute and your step one if you will analysis how does the statute clearly tell you that an incomplete n t a can't be cured with a notice of hearing as was used in this case it tells me in several ways st it's use of the singular it's talking about a single document nd if we look at the broader statutory and regulatory context we know that it's a prosecutor it's the trial attorney that serves these patients receiving documents that the statute is referring to a document but also a process service hoose who serves the case initiating document the department of homeland security but in this two step process the department has to co opt immigration courts and basically  where is said that the government has provided as well your argument about the immigration court not being part of his is part of the government so i mean literally it would whether it's d h s very clear delineation of the powers of an immigration judge and nowhere in that section of the statute that talks about the judge's powers does it say they can serve these case initiating documents they can send subsequent hearing notices also we look at the statutes that gave the attorney general the power to delegate certain a powers to his employees including agents of the h s previously ins that's always been in the statute and regs that only that body has the authority to issue these documents so that's the time rule was not created in a vacuum it was created with a decade long understanding that it's the ins that starts the case by serving a charging documents not the court you need this this separation of powers argument to prevail in this appeal do i need i don't think so because we have got many things in the tool box i believe we have plain language i believe we have legislative history showing the transition from the order to show cause that could be something you know the immigration court is is is that isn't part of the judicial branch is  know it's a separate body but in the nonnes it's an administrative agency it is more but there are a designated officials within the regulations that are allowed to serve an m t a and that does not include immigration judge hearing and didn't raise any objection seems like he he was as far as notice is concerned why is there any problem with that he showed up and it was a problem with the m t a could raised i think there would be that would be a larger concern if his cases had come to administrative finality however his case was on appeal he did not have a final removal order and as frequently happens especially in our system where proceedings take so long what will happen over the passage time is that someone becomes eligible for new forms of relief a great example is somebody who popeye's for asylum perhaps they lose their case they go on appeal they get married to a u s citizen suddenly they have this other path and so a motion to remand is filed before the case becomes file and says hey there's this new path for me and that's exactly what happened here you're right he didn't raise the objection when he was in front of the judge not until the very end to even have physically ten years in the u s but as soon as pereira came out and soon as he crossed that ten year mark he waived the board and said there's something new there's something new i qualify for something new so i don't think we have a timeliness issue in this particular of for the year hearing it is not a notice to appear in other words it is a nullity and how how does that play into an argument relative to the two step process that the government is alleging here right well what's interesting in the government's position is that they have to take two documents that on their own don't make an n t i pereira says exactly what you're saying that an entity of missing time and place information is simply not an n t i it's a nutty well a notice of hearing although it might have the time and place information is missing a host of other information that is found on the m t a such as the charges and the factual allegations so this document is not an m t a and this document is not and yeah but suddenly we wave our hands and combine them and there's an m t a but i think that's especially problematic when we have two separate agencies with two separate roles in this process and the legislative history clearly shows that congress wanted there to be one to make things streamlined and efficient and to get away from the two step process that have caused so many problems in the past going back to just backwards going in and i know you want to save some time but absent legislative history you still the notice may be given in a single document or multiple documents the text of the statute does not preclude the use of multiple documents and the two step process of a notice to appear in combination with a notice of hearing is a s and pereira said that only a complete n t a triggers the stop time rule so why doesn't the statute plainly require a valid and a to stop the clock statute it says written notice parentheses referred to as a notice to appear shall be given specifying the following the written notice part is not preceded by an article it just says written notice that can be read in the singular or multiple documents that's the operative language of this notice statute the parent thread a cold referring to a notice to appear i mean that's a naming parent that a court says what we're going to call it  it's the written notice portion of the statute that's the operative language but the referring to a notice to appear even though a notice to appear may appear to be able to be read in the singular  dictionary act says that singular references include the plural unless the context indicates that and you know the context would be written notice which can be read to mean a single document or multiple documents at best written notice which doesn't preclude multiple documents on its face and then a notice to appear which may appear to be referring to a singular document make the statute ambiguous maybe it lets you filing of singular article a complaint means that you have to provide a comprehensive document that says that constitutes a complaint i don't know under the rules  it's not a deadline provision it's a notice provision it's when a person is notified of the specified information so that's completed as soon as the person gets the notification and the th circuit talked about written language the statute with an ordinary meaning the examples that you know you referenced a book that's delivered to the publisher with a chapter time or a term paper missing from clues in this completed the reasonable expectation by anybody you make it because i'm using the example in the six circuit this ng or article a book so if you order a book from amazon and would anybody expect to get syria  would in effect the government is doing is curing what would be perceived to be a deficiency in the initial into correct your honor well what continues to trouble me is looking at pereira and i understand briere didn't deal with the three wheeled chevy in the whole point that in rejecting that that reference the majority in peru are said this thing that you send that doesn't include this time and place it doesn't exist it's a it's a knowledge it is it can't be cured and that's that's what i keep going back to and so help me with that but it seems to me that if you follow the logic of that when you soon this notice of hearing there is nothing to cure because it doesn't it was a nullity it didn't exist help me the supreme court talked about the essential function of a notice to appear to be giving notice that said if the words notice to appear mean anything it means at a minimum the government has to provide notice  information if it was telling you what it is right what it was do you know you talked about in that particular section of pereira it's saying you have to look at what definitional is being done here in definitional ie if it doesn't include these two things it isn't a notice to appear in if it isn't a notice to appear there is nothing to queue or well it's not a notice to appear as we are going to brief refers to the constellation of information that the person must be given notice of so when the deficient notice to appear is served it's not a notice to appear but once the person gets all the notice that there that they're required to receive in the statu b it may be that the notice of hearing ended up giving mr ben wales the information of what he was charged with and where he has to show up right i it still requires a valid notice to appear and the government didn't amend the m t a maybe it could have amended the m t a but it didn't so why does the clock stop notice to appear which we say is ambiguous because written notice could refer to a single or multiple documents and a notice to appear on its face could refer to a single document although the notice to appear occurs in both of those steroids and how help me understand why is it a natural reading to assume that one can say that a constellation of information i want that phrase would it just doesn't strike me as being how one would ordinarily interpret language like this a notice to appear means well once i get all these little pieces together i have this thing it's called a notice to appear when the when the sprinklers already told us when you got this i exist i mean so what am i just posed to put in my pocket and wait i'll get all these other things and then i have a notice to appear i mean this just not to help me i mean that that's not how i ordinarily read language we're relying on the phrase written notice which which includes apparent that it will which takes you to the one i mean you can use written notice but congress could have just written notice but it didn't just say written it they i mean they took the time to  name it because under the prior regime there were there were different documents just to name it and they did name it and so they named a notice to appear which leads us to where we are now  can i just it seems it seems to me that i understood your argument as saying well the agencies come up with a pragmatic approach to the fact that maybe when the person is initially served that you just don't know exactly when the hearings going to happen maybe even you don't exactly know where it's going to happen but they've come up with a sort of practical common sense solutions that will follow that up  with that information and be in the notice of hearing in other words that that that the two step the two the two step process is sort of just common sense solution to some real world  problem with having the information right at the time that the initial service is made is that a fair description of what's happened i think it is and i think it's not precluded by the text of the statue well that's the question isn't it i mean it may be a it may be a practical solution but but but can the statute support it isn't that isn't that question we have to address yes your honor and you you should defer under chevron because the statute is ambiguous d and the board's interpretation is reasonable if i could just respond to one point that petitioner made during his argument about the immigration judge and i having the authority to issue a notice to appear that has no bearing on the this case here of the statues concerned with notice not who's it who issues it and we're not saying that the piece of paper issued by the i j a is a notice to appear we're saying that it completes the notice requirement of the statue unless the court has distant questions we ask the court to deny the petition thank you counsel with my remaining minute and i would like to point out that the government the board of immigration appeals used to believe the three wheelchair he was good enough it was close enough to constitute a notice of appear even if it didn't have all of the required information that was matter of chemical rio and that was the case that was overturned by pereira now in reaching that determination the board at the time rejected the notion that a hearing notice could ever fix that three wheeled chappie it said no with already supports the contention that a notice of hearing issued by the immigration court is a constituent part of a notice to appear the charging document issued that and they are saying exactly the opposite that a notice of hearing they are now saying basically is a constituent part of a notice to appear i think there are initial contention was correct thank you c