eight alternative arguments but you could classify them into three different buckets the st bucket is that the m t a the notice to appear in this case was not invalid for the purpose of invoking the immigration judges jurisdiction the nd bucket is that even if it was defective for a number of reasons that would not have been a jurisdictional defect and we have three alternative arguments on that ground and the rd bucket is that even if the court were to conclude or to reserve the question of whether the immigration judge had jurisdiction to issue the removal order that would not be a bar to a one thousand three hundred and twenty six dollars prosecution in this case so if the panel has questions about the moon is objection i'm happy to answer those otherwise i'll go right into those three buckets the st book as i said was that the statute your honour's speaks to how to best jurisdiction in an immigration court there's nothing in the regulation that cross references the statutory definition of m t a and so in our view the district court erred in saying that the immigration judge lecture stiction or that the m t a was defective for that purpose  one of the two district court one district court case that ruled our way on the very issue before the court here i think it would be fair to say this court has decided that issue although it was a footnote in a case that's not briefs i don't know that that's an inevitable conclusion in all  of course if the court believe started decided this issue we're very happy to rest on that but i'm also happy to provide reasons why we think that disposition is correct and you back up to them and the you know do you think there's a material difference based on the fact that no amount of mark has dealt with a conviction in this case for dealing with an indictment we don't your honor because that distinction essentially between the government losing in the district court in the could say that in some answer rosso there was a very unusual situation in which the defendants had been air diktat on the high seas in other words outside u s territory arrested outside u s territory brought here in voluntarily  then deported before the conclusion of the appeal and maybe in that narrow set of facts the key holding of the amount to more kids might not apply which is that there's a sufficient likelihood these defendants will wind up back in the united states to keep the government's interest in the case momentarily entered the united states before that's the very climate issue in that case the government certainly has an interest in preserving an indictment because there's two very concrete things that does for the government one if this defendant for example reenter th time there's already indictment place the government can arrest him prosecute him doesn't need to secure a new indictment doesn't need to risk a new grand jury would indict two atolls especially limitations which is about as concrete as it gets if he's arrested more than five years from now we could lose the ability to prosecute him because of sexual imitation has not told so what under modern principles were regis need an identifiable trifle it's hard to see how holding that is that we don't have that kind of interest minimum interest here could make sense i'm so happy to answer more questions from the panel about cases in which it arose i'll just mention a panel that six of the seven circuits to address this now have come out our way four of them in presidential opinions the th circuit which happens to be the th circuit ruled our way as well on the overall issue but on a different grounds it's not really jurisdiction because it's not in the statute i think i think that's exactly correct judge all right but even if it's jurisdictional in some sense of that term it's not jurisdiction like we think of article three subject matter jurisdiction the most obvious way i think that distinction material think what your honor is getting at is there's not a lot of daylight really between one of our positions and the seven circuits decision some circuit said is a claim press in general and so it can be waived our position is that because this is an administrative tribunal even if it's called jurisdictional in a sense it can be forfeited is you have to exhaust administrative remedies to was too sure of you should have been of it could have been available and three is there was a violation of fundamental fairness in addition this court has said you need to show prejudice for the due process violation on the st of those requirements a panel of this court then for the panels a review of the immigration judge's decision it's really exactly parallel to this case he was arguing it was going to have an issue for a different reason but he was saying this is so weighed it's was void at the outset that i don't even have to satisfy the said he understood his rights he was told he could appeal again do it judicial review was available fundamental fairness i mean maybe this is the most significant kind of big picture point here he showed up at his immigration hearing he was advised of his rights he conceded remove ability there was no unfairness here because he was told about the hearing in a different document than the notice to appear in just one way to conceptualize that is suppose the statute just said there's a notice to appear that doesn't have a date time then you get a notice that hearing that tells you that in time would anyone think that that process violated due process because you're told when the hearing is in a nd document well the answer is no then it's hard to see why what happened here violated fundamental fairness and then finally the prejudice in created this course required really either way you think of prejudice i think there's two ways to think about it there is no prejudice in the way we would think about it is what if the date and time had been included on the notice to appear if the daytime had been include on the notice to appear he would've been removed you can see to remove ability he was an aggravated felony  under the law at the time and he would have moved the way i think the district with what about prejudice which we would not do but it's the same place is what if the district court had properly dismissed for lack of jurisdiction and again we don't agree but he lecture stiction but on the and twenty six analysis we should prevail here i'm having more questions if not i'll just mention one more aspect of this case again this is probably a filtering of arguments that the court doesn't have to reach it but it might be systematically important for other cases all just mention it before pereira this court had approved what some courts call a two step process meaning the notice to appear to be issued without a date and time and then the notice of hearing could have a date time later when it in some sense perfects the notice to just whether the defective notice to appear told the period of continuous presence for the stop time so the court didn't consider what is really distinct question which is whether if some months later a notice of hearing was served the did have to be in time said the cure is not ok under pereira is that we provide a twenty a j letter it's a case called lopez it overruled a case called popa but we just think that analysis is incorrect it's perfectly possible i think maybe even likely that the supreme court when confronted with that next case whether the notice of realm of these cases so we prefer the court just hold if we are druthers that the notice to appear was not defective for this purpose but this is another alternative the court could say well it was cured or or perfected by the notice of hearing if there are no further questions at this time  reserve the balance of my time if you held that it was moot because even if it were to find in the government's favor the remedy would just be a pending indictment and there would be no defendants there to face that indictment and this was not abrogated by me  now in its footnote where it addressed the us army into the role so argument it simply said it wasn't convinced in these circumstances and it mentioned three different reasons one was because the defendants could be extradited that's not a possibility here the other were it was the collateral consequences which an indictment is not going to have and the last was if they happen to be back in the united states then they could be imprisoned i don't specifically say that that was necessarily an unlawful act perhaps that was presumed but since then and spencer become not the supreme court has made clear that it's not going to presume article three controversy based on unlawful acts and to quote them we assume that respondents will conduct their activities within the law and so avoid prosecution and conviction so in spencer b can know that issue was a revocation that had already been terminated to the end and whether the heaviest petitioner could still ch and one of the arguments you raised was it could raise my sentence in a later criminal proceeding and supreme court said we're not going to assume you're going to go out and commit another crime and then this is going to become irrelevant life controversy and even under the general principles that the government talks about there needs to be an interest in jury traceable to the defendant it's not just enough to correct i guess the injury that was caused by the court of dismissing the indictment to send it back to have a pending indictment waiting for m so if he were to return there has to actually be redress for the alleged injury of the unlawful illegal entry and the government isn't going to get that by having a pending indictment and so for those reasons we believe that that issue is moot and if the court were to try to that and we also do not think that the capable of repetition but evading review doctrine would apply here because it's not an exceptional situation the issue the court issue is getting reviewed in numerous cases and even as the government mentions in their reply brief there are descendants who are subject to government appeals that are still in the united states so it doesn't meet that come the general test that it's always going to be too short of a time from the dismissal to the deportation of that client there are other cases where this issue could be life and so we would urge t some into rosso has been abrogated i still believe that this issue is moot because the government's only actual redress depends on this to produce a committing an unlawful act and to the extent that that that's enough for article three jurisdiction spencer of economics it clear that it is not and it was not only that example it cites there in other cases where it's not going to depend on a bunch of ifs that rely on illegal conduct to make  an article a controversy live now with regard to whether or not the end of the notice to appear was defective it was that was a st of the the framework it up actually relies on the fact that the statute didn't require the notice to appear to have a hearing time and the supreme court has now said no the statute does the statute requires there to be a notice to appear as defined in the statute and that's clear not only from the title and the text of that particular statute as outlined in the brief but also by the transitional could designate other documents as if they were notices to appear to quote confer jurisdiction on the immigration judge up the existences and all the circuit some in seven circuit has a slightly your would you be able to go all the way through these these arguments and win it in the existing laws right now so far none of the circuits have ruled in our favor but i believe is that of the circuits that say the cure auction  is possible they're serious misstep is that they don't find any glue between the statute and the regulations there is a clue there's a clue in section three hundred and nine see two that i just mentioned there's glue in the regulations the federal register when the agency is home a gated regulations to implement our ira they specifically say we are now going to implement these new requirements that are in for a notice to appear and find the language because it was a little mis represented i think in the reply brief so i want to sure be sure the court has and its mind the proposed rule implements the language of the amended act indicating that the time and place of the hearing must be on the notice to appear the department will attempt to implement this requirement as fully as possible by april st one thousand nine hundred and seven language has been used in this part of the proposed rule recognizing that such hug implement that through these regulations but there might be some instances when we can't get it done such as computer crashes or power outages and not as one is an eight c f r one thousand and three point eight team and be  computer is down the statute requires there to be a hearing time in it and so to the extent that the regulations created this exception they're rewriting the statute and removing the requirement that congress put in there proceedings and determine and in this ability and the portability but they don't get to do that for just everyone they can only do that for people to whom the agency has given a notice to appear in the supreme court says if it doesn't have a hearing time assuming that you win on n t a assume that you went on korea or what do you do with the th circuit and the fact that it may not be jurisdictional at all right so with regard to that st i want to emphasize that this is an administrative agency context and even the th circuit recognized that the claim processing line of cases were for article three courts but assuming that and then you have the statute itself initiation of proceedings and a notice to appear must be given to the non citizen and here's what it includes and as one of those is the here in time of course and then  context taken as an entire scheme ira ira reform the removal proceedings and it also allowed other entities administrative officials essentially to determine the in admissibility into immigration judge doesn't get to determine the innocence ability and room with room of ability of those people and so what a stablish is the class of cases that the immigration judge has power over is the notice to appear that is a prosecutorial decision that the department of homeland security gets to make of who is going to be subjected to these proceedings so that's part of the context again that we are dealing with an administrative agency in silk city of arlington teaches that in the strait of agencies courts have to follow statutory directives and that really when we're looking at what congress tells an agency to do the line is to make sure veterans have access to the courts to get their claim pursued and the courts have recognized the role of the nitty in the context of immigration proceedings because of the severe consequences that  follow with deportation assuming argument over that you are correct and it is jurisdictional and not a claim processing rule why don't you nonetheless lose for failure to exhaust authority to decide whether or not it was an aggravated felony and here it's different because we're not sure if the proceedings actually should have started to begin with and so that goes to our whole voided element argument and that that the government cannot prove mr parker hunt been removed because there was no real removal order and we cite to those cases this court's case and james relying on the th circuit lopez for the proposition that void order is going to be excuse me that a void order means that there is that you're not going to enforce it which is essentially what the government is trying to do in definition of valid it i argue that it requires a removal order and if the immigration court didn't have authority to issue the document that it did then that is not a removal respondents also were asked do you want to appeal and they said no we accept the deportation that is not totally clear from the majority in the dosa lopez but in chief justice rehnquist dissent he makes it very clear that's part of the reason why they're so upset with the majority because they felt they had gotten judicial purview because they were asked the question about whether to appeal and they said no that they didn't want to but that the mendosa lopez majority went on to say that it wasn't considered an intelligent appeal waiver because they didn't know what they were waiting and that's what happened here with mr petrofsky he didn't know he could challenge the judges authority in the st instance told him if i make a decision that you disagree with then you can appeal it the judge did not explain jurisdiction or authority or power to local words that would be understandable to a pro se immigrant get and so that interchange between mr patro son the immigration judge is not sufficient to be a considered and intelligent waiver of appeal with your best case for that proposition  this court did rule in part ability ionise that for us counsel in the immigration setting was not valid because the legal issue was really cool complex and that that wasn't clear to the non citizen when he said that's right i don't need a lawyer so the other pun of course is the fundamental unfairness which goes back to our jurisdictional argument essentially i would say that the actual prejudice prong if we had to make make it would be that he could not have been removed in a perceiving that wasn't started with a notice to appear and under pedder there's no notice to appear if there is no hearing time in that and so that's why there is actual prejudice in this case we have said that failure to follow a regulation is not a deprivation and due process and he was in fact advised of his ability to appeal and i'm not complaining about the following any regulation i'm complaining that he did not know that he was appealing could not that he had the option of challenging the immigration judges jurisdiction and that that was something that he could appeal so that made his appeal waiver not knowing he knew he could appeal in general but he didn't know the circumstances and in an dosa lopez that was enough for the court to say he was deprived of judicial review i see my time is up thank you your honor i don't think opposing counsel is giving this court any reason to get on the one side of a seventy one circuit split on the merits issue in this case a talk about the merits briefly but i want to address the moon is question i think opposing counsel said a number of things that are incorrect about newness st opposing counsel said that you can't presume for the government's concrete interesting case that the defendant might violate the law in the future citing spencer versus ken that's a case about a defendant's appeal and the defendant can establish his or her concrete interest by saying i'm going to i like the law in the future which of course makes sense but the government's interest in any number of matters is always predicated on the fear that it offended my plate the law and we move to detain somebody pending appeal for example the government's interest in the person might violate the law either by not showing up for their hearing or by committing a crime that harms the public safety the government's interest across a whole panoply of actions is that a person might violate the laws that were seeking to restrain them so would be an extraordinary holding and not something the supreme court has ever said to say the government's concrete interest can't be predicated on the fear that violate the law in the future i also heard opposing counsel say that the government's interest on appeal can't be something that the district court did versus something that the district court did it has to be something in the real world of course our initial interest is something in the real world promoting the public safety by enforcing the criminal laws but it's absolutely not true that the government's appellate interest can in part be to reverse a district court's order this is not a case cited in the briefs but because i'm just hearing this point and it's a case i think the panel is probably familiar with in united states versus windsor the case struck down the defense of marriage act the supreme court in its opinion said that the government's interest on appeal was reversing the district court's order to pay mrs windsor benefits so it's absolutely not true that the government's appellate interest can't be something that the district court didn't eaton's the courts in the western district still do with this way and the courts in the southern district do it the other way is that what's happening  in the state of texas are you not and so i'm not i'm not i'm asking to the courts in the western district find that there's no jurors did they did that they they followed the path that the district court filed applied here are they continuing the western district sorts doing it a number of judges have found against the government on this issue this is one recent important issue for and that suggests that we're arguing this is an important legal issue for the court and that's that's why i'm asking this question but the courts in the southern district all go the other if neither lawmaking body neither the agency nor the congress thought that an immigration judges jurisdiction had to be predicated on finally a notice to appear with a date and time and yet somehow we get to the point where the jurisdiction of thousands and thousands of removal proceedings is called into question even though nobody intended it congress said nothing about besting jurisdiction and the agency for seeing the practical problems with including a date in time said to bester section you don't need to include a time so it would be exceptionally strange if years and years down the road all of these things are invalidated on the ground that no law making body ever thought should happen judge already talked about the seven circuit decision in the jurisdictional again this hour and was not raised before the agency whether you've say that's a problem because it's a claim processing rule or that's a problem because you can forfeit jurisdictional arguments or that's a problem because even in order to kill three you can forfeit subject matter jurisdiction for purpose of a later collateral proceeding any way you cut it it's a problem that he didn't raise this before the immigration judge and that alone is a were for the thing that i don't think that's the kind of circuit split that michael upstairs because it doesn't seem like it makes a big practical difference in most cases i don't think most defendants in the past raised this issue before the immigration judges so whether you do it the th circuit way or the way the other six circuits have done it i'm not sure it's going to make a big difference in a green but there's no circuit that runs the gauntlet and or so to speak and comes out the way that the defendant wants on every issue her correct and a lot of the circuits that not even consider the