good morning may it please the court my name is corey hong and i represent petitioner dorna miller there are three reasons why the b i eight aired first the reinstatement statute provides and relevant part that quote to remove all order is reinstated from its original date and is not subject to being reopened or reviewed unquote the government claims that it is plain and obvious that this language then bars any subsequent due process challenge to a remove all order factors are met there is no duty or requirement for an ice officer to reinstate proceedings even more important this court held that the language in the reinstatement statute or only bars  of the removal order applied to villa i'm yano a non citizen then successfully defeated his eat legal entry criminal charge for proving that his removal order had a constitutional defect which was that he did not have notice of the potential to twelve c remedy but despite prevailing in criminal court the d h s s reinstated the very removal order that the district court had found effective because the constitutional infirmities to remove litter cannot then let the agency reinstate it this court baik aided the reinstatement order and remained it proceedings to ice to decide what to do in the sixth circuit still a positive client didn't challenge in the criminal proceeding the right she did not but she was not required to and with this case shows that even if she had it would not successfully collaterally attack the order it still remained in full force which is why it was allowed to be reinstated in that case now in the sixth circuit still a pas also considered but rejected on the merits a constitutional challenge to the underlying removal order that had been reinstated the broad language in the reinstatement statute then does not  foreclose claims that the underlying removal order is constitutionally defective now second the b i a cited two morales is here though for the claim that the reinstatement process divests the immigration court that literally any time like your client could wait for ten more years and then decide to bring this this motion to reopen yes it has never been it has never been challenged in this case though it was she brought it seventy five days after she actually while she was then meanly subjected to the colonel proceedings in the thirteen twenty contact he says of having been ordered removed returned so that was an two thousand when did she filed a motion well so then she found counsel and then within seventy five days i'm not sure i can double check that the record of either seventy five days after the conviction was imposed or after receiving notice that it was some time after she became aware that she had been ordered removed and you know her account not having received notice so that's why it just seemed like there was a long delay before she took any action as judge friedman pointed out even for you know didn't pursue an opportunity in a criminal proceeding to raise this so i just seems odd to have this indefinite time span in which you can just pop up and say you know what as a matter of fact i've never gotten well your position that she was timely but even if she were not it's your position of i understand it that means at any time it's three notice or weeks or months after the conviction because that's very different she she had noticed as soon as the criminal proceedings began right was she had she did have no sense of first time she learned of the reinstatement process correct but even so the statute does not what's up what's notable to be i did not deny it on that on that basis that it was a lack of diligence rather they denied it because they said they didn't have jurisdiction to hear it terms of the relief you are seeking from a gather it's just to send it back to the  know you do have jurisdiction now consider this on the merits absolutely ok and that's that's exactly that's that's all that's that's been requested that is the proper remedy that was in and the protests and the legs as escobar where there was an decision or it could construe the statute as it's as it so says deems but right now the only thing that we're looking for is for a for a clear holding that a constitutional claim remains valid in reinstatement just out of curiosity so what escobar where in those situations just evidence that the government sent the notices either to the wrong address or there was a failure to receive that was enough to rescind the removal order here we have more than that where we actually from the  have three letters that were sent by the immigration records and returned an open to the immigration court to the co the court had notice that the documents had not been received so that is adequate evidence and then that the to do that after after that's fully vacated but for her the remedy that she wants is an ability to seek for asylum because of the situation that happened to her that she needs that protection to give for herself to get a green card to give status to her husband and give status to her daughter so her media interest she doesn't care about the felony conviction but having an opportunity to get the asylum and the benefits that are only available through that remedy and then and then so with with again footnote thirteen explains that this is available and so the fatal flaw in the b s decision is that it assumes that the limitations on challenging reinstatement orders  limitations and challenges to the underlying removal orders now in one thousand nine hundred six congress made the policy decision that when expanding the reinstatement procedures to prioritize speed for those who have a prior removal order the d rapidly remove them out of the country but for people like miss miller who claimed that their first removal hearings were not full or fair in them have a day in court is not inconsistent with the post  usually we read the later statute to trump the earlier statute don't worry well there is a there's there's a question of the time because that the the reinstatement was started in one nine hundred fifty s but it only applied to those who were considered valid in the reinstatement process but well why do you think she has a constitutional claim though just as opposed to just statutory claim under the provision that says you can reopen if you didn't have notice will the precision notice is a very unique one where basically it's caught to find the due process protections and notice it's unique that that statue clearly provides for that and so whether it's decided by statutory merits or the due process you get the same results ok let me  good morning may it please the court amy carmichael for the government the sole question before this court is whether the agency correctly determined that it lacked jurisdiction over the petitioners motion to reopen i'd like to start out by pointing out that this isn't actually a notice case because she didn't actually removal order the first is where there is exceptional circumstances and that motion is allowed within one hundred eighty days of the end of censure removal order that was the basis that she argued before the immigration judge and that she argued before the board she argued that her that she experienced ineffective assistance of counsel and that the end effective assistance of counsel was an exceptional circumstance that excused her failure to appear she did not argue notice i thought she would argue actual notice is actually not sufficient to reopen for lack of notice the alien has to demonstrate not only that she did not receive notice but that she didn't receive notice notwithstanding the fact that she otherwise complied with the statute here we have evidence in the record that that they sent the notices to her address of record if she felt but she doesn't expect she offers no explanation and any of her briefing or in her affidavit as to why she did not receive th since the statute says that she can raise that at any time why do you think the later statute in any way repealed so the reinstatement sachs says explicitly that the   you can always challenge when you have notice and basically that has constitutional implications you can have something happen to you that you never had notice of and never had a chance to reject go to another country to seek asylum as in this case you come back you never notice at any time assuming there were that she didn't have notice which is the factual issue i have several responses to that your honor to start with this is  somewhat unusual case because she self deported in the ordinary case the alien is going to have noticed that there is an order outstanding order against him when ice issues a bag and baggage letter and picks him up to remove him  upon the filing of a motion tree open so in that circumstance what ordinarily happens is the alien says oh my gosh i didn't even know that there was a notice against me and here i says that my door they file a motion to reopen seeking to reopen the notice and in her case there's a few other protections that are already built into the statute the first is the reinstatement process itself d h as is required to first give her notice that they are reinstating her prior order and then they are required to give her an opportunity to respond and they have to consider any response that she gives now be her response can be i didn't know that there was a prior order of removal and d h asked has to take that into consideration and in fact  states that where d h asked doesn't take an underlying due process concern into consideration it was error for them to reinstate the prior order that didn't happen here because she didn't raise those challenges either in criminal court or during the reinstatement process respond to judge or a cop's earlier question about which statute is more specific is one of these more specific yes because the the reinstatement statute says that reopening that you cannot reopen the underlying order now to at any time statute is not absolute in that way there are other restrictions upon that why isn't it more specific to talk about removal order that you didn't have notice of then just to talk about removal orders generally so when enacting congress was seeking a particular goal when in acting the reinstatement provision and one of the goals of that was to reduce the amount of people who are coming in  we do with morales is scared of them and we found by the footnote that seems to disagree that that's how you reconcile these that's just so the footnote that they rely very heavily on ignores the text that it is the attached to but that doesn't matter for us as a three defective service or any other ground right but that statement is talking about in the reinstatement proceedings themselves so that's right she couldn't in the reinstatement proceedings themselves litigate this question of adequate notice but that's why the footnote is important have to do it from abroad and if the only and choosing how do you get it from abroad you didn't know there was one to reopen yet well again i think that i think that this is where she has the obligation to raise that in reinstatement proceedings which she did not do it is and this thing that she could decide so i mean that might be an argument you could make before the b i a when they have jurisdiction over this question i'm not sure why we have to sort that out i think that that i think that you're making an excellent point actually that this is actually a chevron question and the agency should be deciding this in the first instance which they did not do here because she did not that the question of well we have these two provisions one says at any time one says not at all which one prevails that's really a question for the board to consider the board didn't have that question in front of it because she did not base her motion on notice she based it on the one hundred eighty day provision which is also i think it's worth noting really quickly that the regulations states that you are the regulations states keeps the one hundred eighty day rule and the notice rule in the same paragraph in states that you're only allowed to file one motion under that paragraph because presumably if you have notice in order to file the one hundred eighty day motion you can also file your notice motion so that at any time is subject to other types of limitations whereas the reinstatement provision is not  let's put a minute on the clock  thank you i just have one point that she very much challenge to the b i a into the i that she did not have notice of the first removal order the opening brief pages one thousand to twenty four cite everywhere in the record  where she filed a motion to reopen if supported it with records from the foyer both about the letters that were sent and returned an address from the post office showing that this was a valid address and a declaration that she herself never received  and if there's a little question as to whether her showing adequate or you know adequate that when the problem the b i jurisdiction that would simply be another issue they would have to decide yes absolutely that would be a question the merits did she