as a matter of law no prior order of removal exists upon which to base mr mendez's illegal ranchi conviction at the time of the ice ordered mr amend is removed it had not served him notice of the removal proceedings which meant that under the agency's own regulations it lacked jurisdiction to issue a removal order but even assuming that a removal order did exist he was removed he was physically taken out of the country i don't think that's the same thing he wasn't legally removed because there was no jurisdiction to issue an order and without jurisdiction all they did was physically transport him out of the country that's basically our argument now it in the context of  jurisdiction the rules are a little bit different now most of the time when we do these thirteen twenty six d motions we have a situation where removal proceedings have actually started and then something in that removal proceeding was fundamentally unfair and so we look at that fundamental unfairness and we  at prejudice here we have a kind of unique situation because under the agency's regulations removal proceedings don't actually commence until the person is served with the notice of the removal charges and here there's no factual dispute the government and we both agree that mr mendez was not served notice of the charges until after the final order was issued break but so then he is served removal proceedings commence it happens  the form basically a form has already been filled out and signed it's then served on him correct so so what there we go i mean yes at the moment the person signed it there wasn't authority to issue it but by the time it got around to serve you know on your client everything was ago so the problem we believe with that your honor is that he has served but then no new order was ever issued so what that's what i'm saying so i mean all that needed to happen was an order needed to be served upon him and then executed and it was and all of that occurred after proceedings did commence with just the i don't know what you're saying there's a a defect in the timing if everything had been followed to the script but kind of what's  served afterwards that doesn't mean that you can somehow resurrect personal jurisdiction and make the prior judgment valid you can't you can't do that jurisdiction existed in that moment or didn't and because it didn't you can't just say that service afterwards somehow infuse new life into this removal order that was no one void at the time that it was issued so that's essentially our argument and we acknowledge that this is a little bit different than a lot of other cases but the principle of civil procedure in these types of situations is that once you don't have jurisdiction that moment that's it there's no no going back what you  or you are so essentially i think then so is your argument that he didn't have to do the administrative any because they didn't have jurisdiction this started what that could be i think i think the other argument we would say your honor is that the administrative remedies all occurred at the time that he was served with a notice of intent but he didn't actually get the final notice the final order until after that so in other words he didn't realize there ever been a jurisdictional problem until after the time had passed to exhaust ministry of remedies if that makes sense the other thing that we would are in terms of both administrative remedies and review your honor is that the form that he was given never told him that he had any ability to challenge the legal question of whether he had actually been for instance convicted of an aggravated felony so he had no ability to challenge that that legal question and this court has held numerous there when there's no advise all of the person's remedies then their excuse for meeting those remedies you were going to talk about precious i thought i'm sorry but the other yes think that the let me just make sure i have the the way you're arguing this case just right in my mind you're first out of the box argument is that thirteen thirty six twenty six d framework doesn't apply at all because there was no order of removal to the head with that's right i'm not saying that we rejected that we thought we were under thirteen twenty sixty you would then need to shoot let's assume let's assume that this was a violation of due process of some sort because but what would be the prejudice it doesn't seem to me there is any here because we know what his ultimate response was when he got the notice and he basically want to do anything well i think then the court would turn to for instance cases such as camacho lopez and aguilar rios and there the court held that when a person was removed when they should not have then that in itself is prejudice so we would rely on those cases for prejudice prejudice to him given that i mean he eventually said i don't want to contest this so so then i think that i think your honor we move on to our next argument we move on to the aggravated felony we move on to book and so you need us to be convinced that so i want to just talk very briefly about the attempted murder issue because i know the case before us discuss that at length we're proceeding under slightly different legal theory and our legal theory is based on the california supreme court's  sherry and justice goodwin lose descent from that denial in crew santos and crew santos in this case provides the realistic probability that you need and the categorical approach to say that a person can be convicted under california murder under the california murder statute for basically what would amount to working at a marijuana farm and carrying a firearm and i did a very extensive search of a lot of other states i didn't find anything that came anywhere close to that where a person in another state could be convicted of murder for that set of facts and i think it's also significant that the government in their brief didn't come up with any other states or any other jurisdictions where that would count or were a person could be convicted of murder for that so essentially we believe that because california's definition of the natural and probable consequences doctrine in the murder context is so expansive as both just lu and other states have have knowledged that that's what makes it over broad now i just want to also as a last point to force it down say if the court agrees with us on that it doesn't mean that california's natural improbable consequences natural improbable consequences of that crime but his principal principal might also commit that was true when the supreme court decided to end his already in two thousand and six and that's still true today and it is also always been the case that is not the elements of that first crime matter but the nature in which it's committed so for instance enjoying his over as the supreme court also considered a california case in which that culpability gap that just speaks to that it's one of the decisions in that case w has always existed the argument in this case is it appears to be the recognition that all the legal principles are the same as and when it's already is but there are a set of facts that was found to be sufficient in california that would not be found sufficient under federal law or a majority of other jurisdictions and there's just there's just no evidence of that i haven't seen any of the cases cited an appendix to doing is already the other jurisdiction that apply the same doctrine say anything along the lines of here but basically what happened was the adjudicating authority issued a judgment in the ministry of proceeding resolving against the petitioner before the petition was ever given a chance to respond and obviously the fact that i mean i just think of it in our court you know if we issued a written disposition resolving the case against the appellant before receiving the opponents opening brief i don't think most people would say once we got the brief we looked at we saw no we're still good with that most people would say no that's probably an unfair way of conducting them and education and it seems like isn't that basically what happened here in terms of your can you argue no harm no foul because we know what his ultimate response was but if you step back and look at the way the proceedings went down it was pretty unfair wasn't i don't mean to diminish the significance of the defect in this case and which is why we agree that there is a due process violation which is the first prong thirteen twenty d three but the same time the supreme court has repeatedly said that process doesn't exist as an end in itself but only to protect some sort of substantive entitlement that someone has and in this case an immigration context that substan it's one thing so they have the bar it's like a criminal case in a sense because they have the body that is so it's hard to say they don't have jurisdiction over the matter because they have the body of the  service which creates stiction the basis for jurisdiction has always been and then in context s which is certainly satisfied by someone's presence in that jurisdiction it is true that service is the mechanism by which a court asserts or section one set bas being issued at the i think it was whatever the and i remember it was the twenty sixth in which month it was now instead of it being a proper i guess it's a v h s official who issue something i mean let's say it was someone who worked for the postal service somebody who clearly just had no authority ever under any circumstances to issue that kind of thing would we be in a different situation or would you basically say no still still we're still no harm no foul doesn't matter that the person who issued it had no authority to do so i believe we would be a conduct removals we wouldn't be able to meet that element well but their argument is not that much different so they're saying that the person who issued that thing on the twenty six did not have as a legal matter did not have the authority to issue it so i guess i don't see why why do you get to say that well framework what i'm saying is i'm not really following your answer but what i what i'm saying is that and and all and many of these in many of these cases there is some sort of procedural defect the d h s s or the immigration authorities didn't follow their own right but i guess my what i'm asking is if you can see that when the removal order was issued the person who issued it did not have the authority to do so and you can see that right so how does a yes i just like how does it happen that somehow that thing springs into validity at some later date and why wouldn't that also be true for the postal person at issue and i think this goes back to the nature of thirteen twenty sixty in the first instance what this what this court's decision lopez made clear is that the removal order and the validity of that process is only relevant if thirteen twenty six proceed procedure and so far as a defendant raises that in the context of thirteen twenty sixty motion to dismiss which means of course that a defendant has to follow all thirteen twenty sixty s requirements my and my point is that in the event that a postal officer had signed that order the defendant would never have been removed in the first place claim from the thirteen twenty sixty frame saying even if he had been taken out of the country let's say the officers who look at this piece of paper don't realize it's some by postal workers they think it's probably sign and so they take him out of the country the right person but there's the fact of process correct because in this case the defect is mr mendez was not given notice as defined by you know as required by the statute it's not that he was not bottle thank you i just want to read the regulation at eight c f r two thirty eight point one b two removal proceedings under section two thirty eight b of the act shall commence upon personal service of the notice and so as the court i think has gotten at this point that's that's  argument removal proceedings never commenced here now i want to just step back a little bit and point out that if the agency wants to take him out of the country if they say we can remove you maybe that's one thing but here we're actually in a criminal proceeding and the government is relying on this removal proceeding to prosecute him and to put him in prison i think that takes it to another level and even if you think that maybe there was or there wasn't a valid removal proceeding the fact that we are now sure he