the court i'm aaron tried in on behalf of the appellate one cortez and the prior argument the court properly identified a number of serious problems with the regulatory regime surrounding notices to appear section one thousand two hundred and twenty nine of the united states title it requires the notices to appear contain the time and place of the immigration hearing now the immigration authorities for approximately the past twenty two years have ignored that requirement and have issued notices to appear the do not contain that information now confronted with the repercussions of that failure they're asking this court to accept their post hoc rationalization that the statute does not require that information or that that information is not required and notices to appear that are filed in the immigration court and that the regulations alone government govern the content of those notices to appear this court should reject that position and recognize that the indictment charging mr cortez with illegal reentry must be dismissed because the deportation that serves as the basis for that indictment was void of initio because the immigration court acted outside of its jurisdiction and i will talk about  dollars d but if it does those requirements still mandated dismissal here are the risk of repeating what we did before want to tell us what your take is on the jurisdictional question certainly or other so with respect to the question of of jurisdiction i point out that no one to this point and none of the the three circuits that have addressed this the immigration consequences of these cases has  recognized the effect of the transitional statute under ira ira this is when when in one thousand nine hundred and six when the immigration and nationality act was amended to include the notice to appear basically changing the prior process which had been a two step process where immigrants were initially served with a no in order to show cause and then received the nd notice of hearing congress change that with the acquire a notice to appear and specifically stated in the notice to appear and put the time and place of the hearing in that now because this was a big complicated transition there with congress in the same statute that  inactive the ira and section one thousand three hundred and nine and acted a transitional rule as to how that transition would occur and as part of that transitional rule they address to the jurisdictional effect of the notices and they said the default rule would be that proceedings begun under the old notice would continue under the old notices but the attorney general could elect to proceed under the new notice if you elect to proceed under the new notice question of chevron has congress spoken clearly congress has spoken clearly on this point if there were any question about that and about the effect of that it's also wor the other point that was not considered by the prior circuit decisions on the in the immigration cases was that the regulations that the the the the homeland security is notice to appear to contain the time and place of the hearing if practicable both of those regulations were enacted in order to implement that the notice to appear time and place requirement and we know that because in the federal register where the enactment where the the proposed regulations were promulgated the attorney general stated that the proposed rule and the proposed rule includes the notice to appear requirements implements of the language of the amended act indicating that the time and place of the hearing must be on the notice to appear so the arguments made and the the regulatory history that you bring to bear it it's very interesting and it seems like it would be extremely relevant if the regulation had left undefined what an m t a had to include because then you might assume from the history and from the statute they probably meant it to be the same thing but in light of the fact that the regulation sort of goes on and says oh no when we use the phrase n t a we're talking about something different has the same name but it's a different thing i'm not sure we can get past that but by looking at the history you see what i'm saying i see what you're saying you're i don't know the regulation itself does not actually say we're talking about something different it talks about and they are just talking about something different because it defines it different think it may contain one extra requirement that's escaping my mind too but the the what what the regulation then does is a separate regulation one thousand and three point they go on to say the notice to appear shall contain the time and place of the of the immigration hearing where practicable so on one hand you have the statute that says shall contain and on the other hand you have the regulation that contained where practicable if it were called something other than a notice to appear in the regulation if it were called like a commencement notice would your argument be the same i mean it just seems like a whole lot is riding on the fact that they use the same term i think the would be the same i think my argument would be the same but it would be weaker can i ask you then about the other two documents that the regulation says qualify as charging documents and neither of those is a notice to appear so under your argument are those not sufficient just the thing that says here you have jurisdiction well those are proceedings those that don't i want to make make sure we understand that those other documents the immigration and nationality service can't opt to use those documents just whenever it wants to the notice to appear is the document that initiates removal proceedings those other those other notice is an issue proceedings but there are different kinds of proceedings but they vest the i j a with jurisdiction call it a notice to appear that you have a problem and notice to appear yes you are new so it really does seem like if if the agency monod to fix this what you see as the problem they could just call this thing something else well that might be true but that's not what they were doing the the the court is the supreme court recognized in michigan vs e p a the courts can only affirm agency action and agency rule making based on the grounds that the agency itself used here the agency said we are implementing the content of the statute with our rule making these rules are intended to implement the time and place requirements of the notice to appear and they don't and the agency's position was we'll do it where practicable we should have everything done by nine hundred and ninety seven barring emergency is power outages computer crashes down time as what is stated in the regulation now is the supreme court recognized in pereira as a practical matter almost one hundred percent of the new this is to appear lack this information the agency plainly did not implement the requirements and i did not know that was just because everything is so backed up that you know they docket these cases but there's not going to be a hearing for two years so why like pick a date now in removal proceedings just as a practical matter that's not necessarily true removal proceedings much will proceed much faster especially if the alien is incarcerated says it takes a while to get a hearing right not necessarily your honor i think it depends i would also not true that in many cases it takes a long time to get a hearing and i think we're the practicalities of this  that i'm not talking about the practicalities i'm just saying why can't the agency have a rule that says we're going to dock at these cases when we know that down the road there will need to be a hearing we're going to shift everything from v h s and ice over to the a we're going to put it on the calendar we're going to let i g s manage their calendars now they know down the road there's going to have to be a hearing and when the hearing gets close we'll tell the immigrant we'll make sure the immigrant has perfectly good notice but i don't understand why that's not a perfectly sensible way for the agency to organize its affairs it could be your honor but that's not actually how the well it was a lot of well i've just basically described the regulation well your honor what the what the regulation states  we've said that the that this will be contained where practicable but the regulation is not all for on all fours with the requirements of the statute i think the statute just says that in order to do something i'm  nervous about using jurisdictional language but in order to give the immigrant adequate notice so that it's fair to have a removal hearing you have to be sure that he knows he or she knows where and when to show up and the regulation provides for that but i don't understand why that has to be at the same time that you docket the case with the i j so that the i j can do a bunch of other administrative work that doesn't require immigrants presence two things i would note about that comment st i think that goes more to the question of well i hate to bring another form of jurisdiction into this personal jurisdiction which is not the issue before before us and i think the government has agreed that to the degree that we're talking about jurisdiction we're talking about subject matters w not personal jurisdiction your honor because there it's the regulation and the and the statute are both talking about the authority over the court rather than the authority over these thirty of the court rather than the authority over the individual if you go back to me we only way you say that but i don't understand what part of the statute are you talking about where it says to be clear we're talking about the authority of the agency and not authority over the individual because usually when we're talking about notice and whether notice has been adequate we are talking about authority over the individual well in this case i'm talking about in the in the transitional rules and ira ira three hundred and nine see two words discussing the  notice provided under the prior section will be will be affective to confer jurisdiction on the immigration judge not can talking about conferring jurisdiction over the individual the logic of prayer a similar similarly indicates that the the content of the notice to appear than there is to appear is required to contain this information it's not a notice to appear it's not a defective notice to appear it's an incomplete notice was not a case about jurisdiction they did not address the jurisdictional question there but of course the necessary concludes necessary logic and reasoning that the court applied in reaching its holding as also binding on future courts in order to reach the conclusion of whether the stop time rule was activated the court st had to determine was the document that perro received in that case a no to stripe your argument is is not a personal jurisdiction argument it's there is no authority here whether whatever we call it jurisdiction or something else and i'm not sure and or stand helpless supreme court could have perceived it and piero if there was no authority question as being decided where the supreme court did not directly rule on it in the united states versus tucker track lines the supreme court noted that in exercising its own jurisdiction the court is not bound by a prior case in fact a notice to appear because it lacked the essential elements of a notice to appear is binding on this court in determining whether the charging document the charging document in immigration court in mr c vested jurisdiction with the immigration court such that it's to this court or such that the united states can deport him based on that faulty administrative perceiving morning your honor is may please the court my name is laura rozen born on behalf of the united states i'd like to try to clear up some of the confusion discussed this morning regarding the differences between authority jurisdiction and due process rights i think there has been a conflation of those three distinct concepts it is the government's position that the statute provides the grant of general authority to the immigration court system to conduct removal proceedings and that is spoken with the attorneys from that office as well i believe our position is consistent although perhaps i can help clarify the specifics of the position i don't believe we have inconsistent positions perhaps there are some semantic differences and twenty nine a can you read me the language subgraph one discussed on page eight of the government's brief in this case there's the nd question then when immigration court which of course is a court within the department of justice may actually be vested with the jurisdiction to hear a specific case a charge levied by the department of homeland security seeking to remove an alien from the united states and that vesting of jurisdiction with the immigration judge in that case is governed by the regulation there is a rd wholly separate and distinct inquiry as to what types of due process rights the alien who is undergoing that removal proceeding must be afforded and the notice requirement specifically the notice to appear at that hearing a specific removal proceeding well if you have as of three steps understand the st one in the rd one i'm not sure i understand the nd one which seems to be crucial to what you're saying remember you start with the statute yes your honor ok now what's your next step the nd step is the vesting of jurisdiction with an immigration court to hear the removal proceeding well it seems to me that yes the immigration court has  we have congress has to authority has to grant the authority to the courts to have as judge harris indicated have jurisdiction to hear certain types of proceedings i will admit your honor the i don't think the statute did a particularly good job explaining in these regulations and perhaps the confusion lies in the choice of the word jurisdiction in the regulation that he that they said that's the jurisdiction when a charging document is filed with the immigration court perhaps what would have been more precise and more helpful is if the regulations said what commences the removal proceeding is the filing of the charging document with the immigration co we haven't talked we all three of you seem to be in a different place than the government is but in a place which in which the government would prevail i don't think the government in this case is in a meaningfully different position than your honour's i have not taken the position that  removal order that was issued would be then void if the charging document did not comply with the regulation and we certainly don't think it would be void if the charging document did not comply with the statute i understand that that was by implication the position of the government attorney who preceded me i respectfully disagree with her it is my our view that the filing of a charging document one of any three types of charging documents with the immigration court it is not by sending the charging document to the the authority to then proceed over that specific case that specific charge of remove ability it's more like a procedural claim filing that is my view your honor yes when that group i don't believe an immigration court could proceed with a removal proceeding regarding an alien if d h has had not filed a charging document with that specific immigration court i think then we would have a problem then they would be acting outside of their jurisdictional authority but once d h has filed a charging document with that specific immigration court then yes i believe they are vested with jurisdiction and may proceed under one thousand two hundred and twenty nine dollars a and go forward with the removal proceeding judge harris asked my predecessor whether a charging document that contained a typo would then render any order that came out of that removal proceedings void i want to be clear on the record that it is our position that the answer to that would be no that defects in a charging document do not strip the immigration court of jurisdiction just like a defect in an indictment or defect perhaps a notice of appeal does not necessarily strip the court of jurisdiction it may provide the alien in this case or a defendant in other cases w brief in this case because of our going of one of these three documents begins the process will be immigration judge to exercise their or is that correct yes your honor so wants this document well there's a notice to appear one of the others is what transpires after that in terms of service and all those sorts of things those are all procedural early something else i would characterize those requirements as akin to the due process rights afforded to the alien in the removal proceeding the requirement that an alien be provided with a notice to appear that specifies all of the and twenty nine dollars a is a mechanism to protect the alien and afford that alien rights within the removal proceeding making sure they are made aware of the types of charges that are being levied against them their right to representation when and where they must appear in order to defend themselves those amount to due process rights which is why when those rights are violated alien then collaterally attack the removal order alleging a due process violation under  d any defect in the notice to appear in that sense would be a due process violation or potential due process violation so just so so the government's position is that even if one of or more substantive defect i just pick the pick use on i could think of but you know it could be a more substantive absence or just a myth some of the information it's supposed to have and nothing that causes a due process violation but it emits some information the government's position is that is not a failure of subject matter jurisdiction correct your honor ok so so it has to be the case and that your step two is not really jurisdictional that the i j a is authorized to exercise charging document in this case that did not comply with the regulations the government would argue that that still did not strip the immigration court of jurisdiction ok so so this is not we're not really talking and that would be because the immigration court already had jurisdiction under  i think that's right statutory authority ok that's correct your honor it is the statutory authority by which the immigration court may hear and preside over the proceedings but when you st assert it and i understand that and if you're sticking with that that's just there were three different issues there's the issue of the statutory grant of authority there's the issue of what does the regulation mean with respect of besting of jurisdiction and then there's a rd issue of what due process rights an alien as afforded and they're not steps they're three independent inquiries yes that's right you say they're independent inquiries but you said you had to i thought you said that in the nd independent inquiry as you say that in order for the  court to to to make this resolution it had to have some particular the immigration court had to be particularly you had to know which immigration court it was you were giving the story to if i stated that the immigration court would lack authority to preside over an immigration proceeding without a compliant charging document i did not into without  designation to them in some way you don't remember i guess i can get the j and look at what you said i mean i can look at the recording afterwards but you don't think you said any of that right i did not mean to say what you just said back to me your honor if i did i ok and of course our hands are a little bit tied by the fact that the regulation uses the term vests jurisdiction i don't know if i buy her hands are tied because the supreme court has said several times back in the day people kept talking about jurisdiction but they meant to like this and we're just defining the boundaries here is does this belong to do you just or does this belong to the jurisdiction yes your honor precisely so with respect to the regulation that states that jurisdiction best at the time the charging document is filed with the immigration court it is the government's position that that is akin to docketing the indictment at the district court level and that is what starts the proceeding there after a defendant or in this case an alien is entitled to certain d harris and the rest of the panel that it agency certainly cannot create its own jurisdiction by regulation congress must have given it some statutory authority to preside over these types of matters that the statute had to have given it the authority in the st instance appropriate notice in that case the immigration court could not proceed but it would still  what i think contributes further to the difficulty in this particular landscape is that notice to appear has been the moniker used both for the notice that is necessary to afford an alien his or her due process rights as well as the name given to the charging document and i'd like to just take a moment to emphasize here that the government is not seeking to apply to different definitions for a notice to appear what has happened is th document labelled notice to appear is multi functional it serves two different purposes the government has elected to use one document to satisfy both notice to an alien as well as a charging document to be filed with the immigration court but just because it is one document serving two different purposes does not mean that the criteria for each purpose is the same and so the criterion in the regulatory history for the text that would suggest to us that that was what was and i understand that your position that that was the intent no your honor and both the statute statutory text and the legislative history clearly indicate that the intent was to provide very specific criteria in the notice of it to appear that  the alien to make sure that that alien is not being deported in abstention improperly but there is nothing in the legislative history that suggests that the criteria for a charging document needed to also include the time date and place of the hearing well but call them both the notice of the board and question i'm asking you is there anything that says to us you know we use the same language notice of appear and would seem to be a work of art we don't mean the same thing in the regulation as we did in the statute it would have been better to tell the document notice to appear and charging document and then it would have more clearly and capsulated the purpose behind the single document but the fact that the government used to chose to use one piece of paper as both the notice to the alien as well as the charging document does not mean that the criteria that must be in a charging document suddenly become the criteria that must be in the notice to appear they are in essence either overlapping circles or c now have all of the criteria of the notice to appear in order to be an effective charging document under the regulations so long as the charging document itself complied with the regulatory requirements it then triggered everything that follows under one thousand no your honor no i disagree with i disagree or on ok i notice to appear goes in that rd bucket of inquiries i was starting with which is the notice to appear is a right afforded to the alien to make sure the alien has provided adequate notice can retain counsel and can show up and defend himself that is in essence a due process right and it is a wholly irrelevant to the question of when an immigration court has statutory authority to preside over a removal proceeding and whether or not a charging document is sufficiently filed with the immigration court it charging document does not have to be a notice to appear it charging document can be one of three stiffer in types of materials and it has certain criteria defined by regulation and regulation alone and as long as that charging document is compliant with the regulations there is clearly no question that the immigration court then was properly vested with authority over that matter we do not have the question here today as to what would happen if the charging document was defective but because that has been the concern of the panel and go to the broader question i wanted to address judge harris has encouraged that even a defective charging document would not strip the court of jurisdiction it may provide thank you your honor so when i heard the government for what it's worth is the department of homeland security can't proceed against an alien until homeland security files a charging document  that i thought the government said that once but not always but i think that gets to the to the heart of this issue is that in order to regardless of the of the generalized authority of the service to proceed against aliens in any particular case they must file a charging document to initiate a case against him knowing as contending as far as i can tell that they can simply pick somebody up and remove them without that process and then wait a nd well that gets me to because they have to file a charging document what it is that our current step to in the government's formulation is where the problem is because the regulations jurisdiction vests and i know jurisdiction can contain multitudes but i think we have to take the agency of this word when they say jurisdiction i don't think we should ever take an agency at its word if it purports to be defining its own jurisdiction well that is a problem your honor ok isn't that a good reason to assume that rather than being lawless this agency was using jurisdiction in a more colloquial sense  doing two things and in theory it would be possible for this to occur but that's not actually the regulatory regime that the agency has set up and we know this because of the attorney general statements in the federal register saying the notice to appear these regulations are implementing the time and place requirements of the statute the regulations that they're referring to to say these are doing something different these don't have to uphold agency i know under your theory they would have to file the notice of appeal upon the notice to appear servant only alien with the date time and place to appear even if they knew you know it's going to be two years from now before we have this hearing and then it would be up to them to ask for a continuance well your honor that is the that's exactly the regime that the statute a change of hearing date they can always change the hearing date the hearing date is not set in stone but as the supreme court recognized in pereira that require the notice of postponement from a surprise in the stand point your theory would require and thousands and thousands of cases that does not say that's not correct but that the government filed lease almost a loser e notices to appear and then seems like have to your honor there is nothing that requires them to be a loser in the the the whole purpose of this of this statute was to simplify the process for and the shooting removal proceedings as recognized in h the process regardless of whether we're in the position where we're talking about the jurisdiction of the agency or the authority of the agency we ultimately get to the same place which is that  act beyond their jurisdiction what they do is alter their advice because it's prescribed by congress i mean the quote you just read explains why a regulation can't vest an agency with jurisdiction and it seems to me that a violation of this regulation would be a defense in a remove all proceeding but i just don't understand how it would be either non way bubble or a basis for a collateral attack on a removal order i mean if the agency somehow was out of compliance with these regulations if we want to assume for a minute that the regulatory and requires the same information as the statutory one so find agency was out of compliance with its own regulations on the reading of the regulations but but but that's that doesn't you know that's a defense but it wasn't asserted here so why isn't that a weevil defense that would not be grounds for a collateral attack on a move order i see my time is up you can respond with so the th court answer that question and in a slightly not specifically but in shogun only versus holder which was an unpublished th circuit case and that case the alien was one of the very very few who actually received a notice to appear that contained the time and place of the hearing he showed up in immigration court but the notice to appear had not yet been filed in immigration court and what the th circuit said was because the immigration court did not yet have jurisdiction it could not order sho you give me a moment your honor i think that that is the best argument of the that i have as to that but it's certainly comports with the general understanding of subject matter jurisdiction and i the understanding of the immigration courts the limited review that courts may do of the limited ministry of agencies have limited authority and for that reason within their authority they're permitted to act when they act outside their authority as by promulgating a regulation that does not comport with the requirements of the statute then their action is alter of eras and they'd be given no credence by this court thank you very much  we will come down and greet the lawyers and then go directly to our next