reentry case first because the agency lacked authority to conduct the removal proceedings in his case and second because the relief of voluntary departure was plausible seventeen years ago after pereira the statute defined section twelve twenty nine in one place and one provision alone the substantive requirements for what is the charging document to initiate remov proceedings we know that the regulations provide that the m t a the notice to appear confers jurisdiction on an i j but that regulation is based in a statute it's based statute doesn't and doesn't address the j jurisdiction is a strange word for this to begin with it is so and that seems to me to something you need to come up with but and any event the statute doesn't say anything about when  immigration court begins to have authority to proceed so there are two questions there that the regulation used the word jurisdiction which is why we've used it but jurisdiction is for courts and here we're talking about agencies authority they are act as ultra vires so the issue of how do we know they're beyond their authority if the statute doesn't talk about this so why can't the agency just in its regulations explain how you start a proceeding and happen to use the word that's in the statute but use it differently well it could but this regulation is based in this statute the statute doesn't need to use magic words what it needs to do is reflect congress's intent to require for all purposes including immigration court jurisdiction or power to hear the case that the hearing did didn't do the second that's the problem sorry congress did not do the second and didn't address in any fashion as i understand it when the authority to proceed if we're going to call it that the best in the immigration court is that correct judge we argue that it does using the normal tools of construction the text the surrounding provisions the legislative history so where does it speak to when a proceeding can start in the statute well the title of the statute begins initiation of or move the proceedings but ok what about the body of the threats to the of the statute uses the term notice to appear which we know is the charging document all the justices in prayer agreed or at least didn't dispute that it's the charging document and we know that from our case law and it required that the it listed the requirements for a notice to appear as substantive they have to be there the surrounding provisions the other subsections below subsection a one address other initial matters for an immigration court like when the initial hearing can't be scheduled after initial notice has been provided that a change in the hearing time should be provided and then congress affirmatively added this provision in one thousand nine hundred six and so what if what we have is congress in a statute  talking about the initiation of rule proceedings describing what is the charging document and pereira telling us that those requirements are substantive if the regulation that the government relies on the regulations that provide that a notice to appear that omits hearing date information can suffice to give an immigration court jurisdiction if that regulation is valid then the all proceeding because without a date for a hearing and otherwise as i understand it what starts the removal proceeding is the notice to appear under the regs it's a notice to appear plus a second notice as to when the hearings going to be and you put ditto together and now the immigration court can proceed it can't proceed without the second but in that case the stop time rule is never going to apply in that case because prayer was crystal clear that to trigger the stop time rule the notice to appear to have included the hearing it ok so that's what the regulations it is inconsistent with prayer is holding but the start regulation isn't trying to tell you anything about the stop time rule is trying to tell you when the court can go forward right but if the court can go forward in those cases but it can't go forward until you have both the notice to appear and the notice of hearing well that's true but down the road in that case if the government would like to invoke the stop time rule in that case it won't be able to because there was never a notice of that's the government's problem and i mean whether that's a problem if there's a stop time problem but not if there's not right well if that helps tell us what congress intended in section twelve twenty nine it wouldn't have intended that this issue which is you know filtering up all over the place because it's not coming up through the agency does that make any difference in terms of our obligation to refer to the asians use opinion and do we have any situation here because where i don't know whether that's true but i you know i least make show a little uneasy so for it to be just citing this nationally critical issue in a slightly oddball case gives me pause and i need either direction right we urge the court to decide the issue without regard to question as to getting to the second question i mean the do you agree at least to the point that this isn't really jurisdiction in the sense that we could get to the second issue to the second issue that i can we skip the first issue and get to the second you but if you if you don't resolve the prejudice question in our favor i did should and i but i want to know if we can i'm going to run out of time but i would like you to take two or three minutes anyway to discuss the pressures question there's jurisdiction in the sense that i can't i make sure the same ground there i go ahead or take his case does fall within the broad spectrum of cases in which voluntary departure is merely plausible there are that there are two favorable legal standards at play the plausible grounds standard which is lenient and we know the standard and the standard for preach inclusion voluntary departure which is that the the most readily available relief in aruba proceedings and i just have broader discretion grant that than anything else and so based on the factors were taken twenty three years in this country is to citizen kids his work history all provides a powerful humanitarian reason and a a reason within  construction factors of this form of relief to outweigh should i have about this is that it strikes me as kind of weird to be with regard to voluntary departure i'm not even sure what the standards are because as you point out with this kind of volunt departure there's no good moral character are whatever and moreover i mean if he's leaving anyway why are we worrying so much about his history and the notion that because he's a come back or because he's going to have less sanctions and coming back as out why judge the only answer i have for that is that is that those are the factors that we have to work with the b i has has has given us and maybe that those who are entitled to to less weight in the court can assign less weight to those because this isn't a substantive form of relief that is going to result in him being able to stay but it is a very broad form of relief it's really not much in terms of relief at all and it's so minimal that the consequence of that i guess is that he doesn't have a removal and therefore can't be for example prosecuted for returning after a move that he's going to be reinstated because he doesn't voluntary departure of voice exposure to a thirteen twenty six charge and it also avoids a grounds of invisibility for having the removal order which is a ten year bar but in most of these cases the ten year bars are going to be in place under a separate grounds  a prior period of unlawful presence so really in a case like this it only avoids exposure and is the question and object of one as opposed to a subjective one about what this particular i j would have done none of this court cases has ever engaged in a subjective analysis tried to ascertain what the i just predilections were or required that the coming testify in each of these cases it is objective and one of the reasons another reason is because it's not a probability good morning and may please the court my name is kevin hackle and i represent the united states and this proceeding here this morning your honour's this case was remanded back to the district court to address a single issue and that is whether in light of the defendant's extensive criminal history he was prejudiced by the defects that is underlying removal proceedings back a due thousand and one and if he was not prejudiced then the court should uphold his conviction and the sentence in this case now the defendant has the burden in this case he has to show that this th positive equities outweigh if they go to equities and that it is plausible that an immigration judge would have granted involuntary departure is your point as to the first did you start you did because here you're arguing that the isn't properly before i said least if it's not a jurisdictional question which you now agree citizen correct your honor yes what do you think is not properly before us or do you think it's just not a problem it's both like it's definitely not properly before the court because there are factual issues that would have need to been resolved by the district court and it should have been briefed well before it actually got up to your honor's but what are the factual issues whether the date was included in the in the notice to appear not not just what not just what was in the notice to appear i mean we do have a copy of the notice to appear in the excerpts of the record but also whether any subsequent notices that he received the circumstances under which he received but on on their theory that matters right has to be in the original and under the defense theory right there is basically no jurisdiction if there are defects and such that the date and time are not in there but that is far removed from the issues that the supreme court dealt with and pereira which was the stop time rule involving an immigrant who had the issue is so i mean one option would be to address prayer and agree with you on that right i mean maybe we shouldn't but that's one option so we would only remained sort of on their theory of the prayer issue right or some in between theory fixed that would be some in between that would require every man i think history but when i was trying to clarify yes i you taking the position that because they didn't raise it in the first place and they came up here and we we mandate for a specific reason that essentially that's the mandate in the case and this issue of prayer issue could have been raised before i mean of course as i mean it was certainly a lot more likely to be raised after the supreme court case but the erratic way they could read this up to the selves and either on a rule of mandate point or something like it we just don't have that issue in this case period because it was raised when it should have been raised and either in the district court or here the first time and when it was sent back it was sent back for a specific reason and that's the only thing the district court was supposed to do a could have done and the rest of it  yes and if they were going to raise it they should have done it at the district court level they didn't need the prayer decision to make these arguments but even if the government's position is that it just doesn't apply what not this it's not an end to a period the end and norden for you to prevail as i understand it you need we need to accept the fact that the regulations can say something different in a different about the same words in a different context greg you wouldn't need to in order to go forward with that would be any case you would have to accept the government's position that there was no lack of jurisdiction by any of the of your not engaging with the what the question of i mean to say that herrera was a limited issue is true but you also have to deal with what the opinion sends to get to that issue and what it says to get to that is shown seems to be congress and when a notice to appear is it supposed to have the date and time of the doesn't have a date and time is not a notice to appear correct and that was done with the ultimately found in light of his extensive criminal history that it's not plausible that the defendant would have been granted a voluntary departure and that's the same argument that we make your with the before your honor's be the involving an individual who was brought to this country when he was due months old and he basically lived here is entire life where i think convictions in valdez never much more serious the convictions themselves were more serious cases are going to be exactly alike but that the entire library of cases that does address prejudice felt as though it is most on point he was the court specifically found that because of the increasing disability it in the behavior leading up to the removal proceedings that that was a significant factor and they also relied heavily on the information in the p s r in terms of the underlying conduct would serve the basis for its criminal convictions we have very similar conduct in this case do you agree that it's an object in question rather than a subjective question yes it is and so it doesn't matter whether things we look unpublished or published because aren't we just sort of looking at what peep the court did in general and it doesn't really matter whether they're published or unpublished the mere fact that there aren't published i don't think that's what's the most significant i think it's the level of analysis that you get in those cases  think you'll find that that ultimately question is predictive right and i'm sorry it's projected yes so looking at unpublished i mean the most relevant data would seem to be  say opinions but the problem is the same problem we always have with these which is that they don't exist except if there is an appeal so you can't really find out what happens and what about the is that's the question here isn't it it's quite a plus ability at least would mean if the i j a could have granted it and not abused his discretion is an extension of the standard it's the standard it's not whether a single think you are mr take it has no assault convictions has no domestic violence so all convictions his three convictions for violating no contact orders we provided the statutes of convictions in those cases they don't require assault they require abuse they require unpermitted contact on judge that the case that we've relied on in combination with other cases the dealing in that case was young he was twenty one years old but this isn't just a sentencing where youth mitigate punishment or culpability one of the additional factors for voluntary departure is the desirability of the applicant for admission at some future point in time and the alien in that case had was an armed felon gang member with two prison sentences for about three years who hadn't helped his family much and had at age twenty one receipt of it with regard to weapons he was less desirable than mr ortega who had children no gun involvement no gang involvement in who had