case the first concerns whether or not the immigration court actually had jurisdiction subject matter jurisdiction over this case in the first place in light of pereira second the p i a and the threshold question in this case following the supreme court ruling in pereira v sessions is the elephant in the room kind of question is whether or not the immigration actually did the  they issued the m t a and it was lacking that the date and time of the hearing i have a couple of questions about that we always have jurisdiction to determine our own jurisdiction that is the jurisdiction of the federal court but is that true with respect to an administrative agencies jurisdiction or is that an issue that has to be released at the unlike issues of our own power to decide cases in front of us well my argument is that subsequent regulation that was issued by  the government failed to follow it was ultra virus of the statute well i guess i my question isn't entirely clear you did not raise this issue at the jurisdiction of the court use always open to us to decide because if we don't have the power to go any further we shouldn't go any further but i don't understand how that translates when the question is the jurisdiction of an administrative agency well your honor if you refer back to prayer v sessions they clearly stated that the notice to appear document was not with that lack d that date and time was not necessary it was not a trivial ministerial i probably know that but that has nothing to do with whether the issue was exhausted at the administrative level i will stand that you  have a good argument on the merits the question i'm asking has to do with whether we have any business reaching the merits in the absence of administrative exhaustion in my view your honor the subject matter jurisdiction can be raised at any time point furthermore the subsequent bermuda's kota case is directly on point for this case and the case well it was decided by the b a and b i am in august of this year it just does not meet the requirements of the statute it simply argues that the regulations followed its own regulations however it's clearly ultraviolet virus of the statute the twelve twenty nine statute and when it's alter virus  it contradicts the clear and unambiguous language of the statute congress was very clear and there's no question in my view that there's a problem with this notice to appear in this case and in many many other cases it doesn't mean that the government has the right to keep promoting this kind of mistake throughout  in both decisions the agency in the court analyze whether or not mr miller goes a crime was a particularly serious crime because his sentence did not meet the criteria of the per se rule of five years but i believe that the court and agency erred when applying the why all test to to this case why all test has six factors well they're not factors their requirements they all have to be met correct correct ok so if any one of them is lacking and however you lose if you look at the particulars of the case and sense why oh it's not a per se rule you have to look at a case by case basis and mr bell goes or guerrero never brought the drugs into his apartment he didn't know that they were there they were kilo that's true your honor but so he feels that he doesn't feel that prying and if you look at because that's a very small quantity and your know it not not that it's a very small quantity but he didn't have control over it he  was not he was not named in the search warrant it was one for hard was named as the person of interest in the search warrant and the search warrant to search three different locations one mail goes guerrero just happened to be on the wrong place at the wrong time so you're telling us he's not guilty of the crime but he was found guilty of the crime he was found guilty years ago that he says he had to have knowledge of the drugs but this is a rare and unusual case in the sense that he was not a direct he was not a direct perpetrator or actor in the crime it's not that unusual believe me the people at the top don't have the drugs in their homes or the guns in their homes that's but there's absolutely no evidence that m then he should have been found not guilty but when he's found guilty of the elements of that charge he they all fall on him the same way they fall under an accomplice  back to work on his case he plea he put no cantante to the charges but i believe you have to look at everything in the case you have you can this is a case by case analysis just like francisco was a case by case analysis and the subsequent cases that looked at particularly serious crimes so to hold this as you know it was some kind of per se rule that you have to look at the amount of the drug as you know completely eliminating any opportunity to discuss further i think is incorrect and i would argue if you look if you look at all the other requirements the two through six he hit there was no money exchanged in this in this case  was not a mean actor at all he just happened to be there it was his apartment but one for hard had the key to the apartment and according to the police report one for harder was going in and out what is forbidden that is to have a secondary hearing on the criminal conviction see the fact that there were extenuating circumstances and that since this isn't a per se rule you can look at it as a case by case basis i mean there is a strong presumption and these drug trafficking charges that they're there are that it's a particularly serious crime but the consequences of a particularly serious crime are extreme extremely harsh so you know the fact that he was in the wrong place at the wrong time i think is is is at issue and in all the cases if you look at y l the three cases that the attorney general  looks to when he makes his decision in that in those cases in the matter of y a l each of those actors was a direct perpetrator and all the subsequent cases that i looked at none of the under the convention against torture him so i have a question about that in assuming that we agree with you that the b i didn't really come to terms with the evidence here both the country conditions report the magazine articles and the testimony that was corroborated and so forth wouldn't we have to remain around for the agency to reconsider i mean the way you're arguing it it's as if we can grant that cat two of his employees were killed by a gang the knights templar he was later assaulted by the mexican military and he received death threats by cartels for not paying extortion money so this is clear that he it's more likely than not that he will face a future persecution because of his position as a business owner states there is no evidence that any public official in mexico seeks to torture him or would consent or acquiesce in his torture that's the end of the quote that's not true there is evidence in the record not just his own testimony about there's all kinds of documentary evidence that public officials turn a blind eye clearing the mayor that supposedly at least according to the testimony which was not deemed things that had happened to him was called off that's not correct that's not what he said what he said was he heard rumors from others that the mayor was was involved the drug cartel so he didn't follow up with the police to find out what they were doing simply based on these rumors and speculation by others so we don't know if the police were investigated they told me they were investigating but we don't know what happened with that investigation because he didn't go to the police and ask for follow up on his request simply because he heard rumors from others that the mayor well the cartels and therefore he didn't go and ask well my point is that the b i basically didn't talk about any of this evidence didn't discuss the documents didn't discuss the country ports and in a number wrong it's not just consign i don't see how it's wrong he was never harmed he was never harmed by a public official no public official was ever instruct or was ever notified that he was in danger or that there was a threat and no public official ever acquiesced to any torture of this individual and there's no evidence that they would you know the there's the crux of his cat claim is that he's going to be tortured by by the cartels because he's a business owner now the only evidence he has and at the and that the individual more likely than not will be tortured by it with the acquiescence of a public official be i never discussed that evidence they never made the argument that you're now making the democrats said there was no evidence but the immigration judge did discuss the that's not  decision we're looking at is a no it's not at the top of the board affirmed that decision and you can look at the immigration judge's decision to see what the board affirmed and the immigration judge specifically went through his testimony went through his claims went through the fact that you know he was two of his employees were killed in two thousand and ten when he first went back to mexico but he had no idea why nobody threatened him on that basis nobody said at that time you know we're going to we're going to do this to you if you don't pay us our ransom he  was he was told that he would be killed but there's no nobody followed up on that threat there is no evidence that if he had gone to the police they would not have helped him that the evidence that there are and instances of corruption in mexico do not demonstrate that more likely than not this individual will be tortured in mexico in fact the evidence shows that there is significant progress in mexico with respect to this this criminal organization that he's afraid of specifically and that they have been losing control in the localities i think the difficulty is that your explanation may be entirely reasonable but the i didn't say that and i think to be his decision is enough when you when you when he said to me no evidence i beg pardon i said there's no evidence what you're doing is discounting the evidence and explaining it away which  is fair but they didn't so they didn't adopt your explanation and they didn't do a matter of her bond or firm months adopting the i js reasoning that's true but i think when you get into the fact that it's this specific individual that what they were looking at whether this specific individual would be tortured in mexico then yes that's true there is no evidence that he would there's simply nothing showing that the police would what acquiesce in his torture especially when you look at  specifics of his claims could i ask you about the jurisdictional question is this the kind of jurisdictional issue that can be raised any time are going to have to be exhausted and you know i would be inclined to agree with your with your assertion that it would be an exhausting is a question well well your question before that whether it was an exhaustion issue i think so especially since the individual consented to agency jurisdiction and he received his hearing notice he showed up for the hearing he went through the entire process they essentially consented to two agency jurisdictional but you know least in the court context parties cannot consent to jurisdiction for example if a diversity case is not diverse the parties can just say well we really kind of like to have the district court decide it we have the jurisdiction we have but is the rule different for an agency where you show up for the hearing you know i do not i do not know i don't know of anything that would say i can certainly take a look and twenty a j afterwards if i find anything but i don't know if there is a difference a distinction between agency jurisdiction and challenging it here in a circuit court or says having a challenge or challenging it there at the at the agency level i don't think it matters i think that the the service of the hearing notice combined with the notice to appear was sufficient to vest the immigration court with jurisdiction  i believe that this coach is right that immigration jurisdiction is a regulatory creation that the regulation specifies the jurisdiction vests when charging document is filed it doesn't say a notice to appear and when you get into what a notice to appear is under the regulations it doesn't require the time and date and it's a different animal than what we're talking about statutorily let me ask you sort of a practical question if we were to determine that we are to decide the jurisdictional issue even though it wasn't raised in the agency should we defer our decision until the bermudas appeal is decided he certainly can by that the aliens  individuals not detained you can certainly wait for for that determination i'm sure there will be more fulsome discussion of of the issues in that decision than were raised in the twenty a j letter and the response here i don't think it's necessary i think that aggravated felony the real issue here is whether the board properly applied the y l factors and it simply did that's consistent with why oh it's consistent with the way that this court has approached the why all factors and multiple decisions since then these are all requirements individual failed to meet the first requirement which is that it be a small quantity the court has consistently held that a queue of drugs a kilo of opium in one case is not a small amount the board is held that a kilo of heroin is not a small amount and that's specifically right on point i'd also like to touch on it's in the briefing it wasn't raised that argument i'd like to touch on the void for vagueness argument that's there i think that's foreclosed by this court's decision and off on souce i don't think well the reasoning of alfonse and certainly is not consistent with later supreme court decisions even the outcome may be that the reasoning is severely under i don't think it's severely undercut i think th statement that because there's there are some it's instances where it's not vague that that saves it i think that's difficult now after johnson i don't think it's enough to invalidate the whole thing but the the concerns that were at issue in johnson simply don't implicate the particular serious crime statute we're not talking about a residual clause we're talking about the application of elements and case by case factors to a standard we're not talking about a another level of state of abstraction which was the problem in and johnson which was that that idealized crime or that idealized case that in fact the the idea of appli applying to real world factors was sort of a counterpoint in johnson and into maya and that's not what we have here this stands in stark contrast to you to those two decisions and certainly under that standard it's novelty for if there are no more questions i'd like to reemphasize that the substantial evidence does support the cat determination with respect to this particular individual there is no individual i shelley that he specifically said subject to torture thank you thank you very i would just like to agree with the court that i think this decision should be deferred in light of the review of where it is coda that's presently before the court and i