the court my name is gloria contrarians eaton and i have the privilege of representing petitioners in this case i'll reserve one minute for appeal or for reporter there the main issue on this case is whether or not it's proper for the board to refuse to consider the expert declaration provided in the petitioners motion to reopen their if you can't back to keep in mind first i s the expert declaration published date july twenty sixth two thousand and seventeen second key fact to keep in mind is that the the declaration bears on credibility third fact is that the credibility determination was the main reason for denying at the immigration judges level and the fourth fact the fourth issue is that declaration was not are not new information it also engaged in improper fact finding when the government attorneys failed to provide any evidence opposing the motion to reopen showing that the evidence was not new but when you say when you say improper fact finding are you saying that that they were simply it was wrong and that they came to factual conclusions that we should find or just patently wrong or that there were something i proper about making facts at that stage of the proceeding yes i'm i'm the the board engaged in fact finding which was in fact not something it was supposed to do it's by engaging in fact finding the board basically created part of the record and that's it's interesting a kind of distinction between reviewing the underlying i j order opinion and then considering a motion to reopen what in your view should the board do in that situation in order to determine whether or not to reopen what how do they do that without coming to become some kind of actual conclusion about whether or not it's appropriate to reopen so your honor i think the board has a policy for the t policy for motions to reopen has to determine the bore should analyze whether the decided that the evidence wasn't new all by itself and so we can't do that but i don't quite understand you said you said the board should determine whether it's new and whether we change the outcome of the case and isn't that exactly what the board didn't do both things but the board it was not new and so they did exactly what you said they should have done right i mean unless i'm misunderstanding what you said please correct me if if i am the forward in this case determined that the information was new but it wouldn't have known that the information was new without it looking beyond what was within the record so it can't the board can't do that the board can only decide if the board can only analyze the board can analyze the information and decide whether it's new and whether i mean the so the government has to here in this case the government didn't even oppose it just looked at the document itself and said this is this is i'm sorry that said that it wasn't to do i think that's good that's well i mean let's just take let's take us as i say they get no no no rather than getting into this i want to confuse you but when they're when they're you know whether it's new or not if they say it's if they say it's new but you could have gotten it before the b i a says this or if they say this is not new both of those would be grounds for denying relieve and so i'm trying to figure out why if based on what you said why the b i a can't make those determinations as a theoretical matter even aside from this case it seems like that's exactly what you're asking the b i a to do you're saying i have new evidence and does it meet the standard for a motion for reconsideration and can't they then look at that evidence and say well no it doesn't meet the stated that the standard for a motion f that the evidence was not new it couldn't have known that it was not new without it it could have known that it was not new without it looking at some other source or or looking at the internet but in this case none of that so the board in this case then created the record i hope that clarifies that maybe that's not so clear it does but i want to i want to ask you quickly about what i think is actually a really big issue in this case and i'm going to have a lengthy discussion with the government about it which is where pereira issue that you raised in your reply brief and i don't i don't think it was too late because the case hadn't been decided when you when you submitted the appellant's brief it was and it was a new case but i wonder about that and i wonder whether whether we need more information because i don't know if the notice to appear requirement of prayer different context right because it was the stop time rule and we don't have a stop time role here issue here but i wonder whether it's subject matter jurisdiction i wonder whether it's personal jurisdiction i wonder whether it's something else entirely because of its subject matter jurisdiction and the and the it in the case was not initiated properly by the government then we shouldn't be here the i j a shouldn't be here it maybe this case needs to start over and i'm wondering if you could if you could talk to me about that and i'll have a conversation with opposing counsel about it as well yes your honor and the pereira the prayer is she was not relevant necessarily on the motion t a bearing on the case that be something that we should be remanded back to let the i j a deal with that issue initially or have you already filed something like that anyway you filed anything with the immigration court on but are certainly we do think that this that does have a bearing on this case and if the issues if this court wants me to expand on those issues i would ask that the court give me time to provide a brief so that i could add additional arguments to discuss the statutory and regulation issues and then the deference issues on the b s a has held right that is not a subject matter jurisdiction issue that the initiation of the of the case is not a problem given at the notice to appear was within the regulation to cure but that necessarily that doesn't necessarily it's not consistent with what is in the statute in the statute basically says that the notice to a proceeding comm upon the notice to appear in the immigration court so by saying that the immigration judge can cure its own defect with notice doesn't make any sense and i think that that of course will be an issue for for their litigation i think my time is up thank you based on an expert analysis of the petitioning allianz documentary evidence that was not produced or transmitted to the department until after proceedings had concluded the board granted reopening on petition for review this court overturned that grant it held that there was no reason to believe the department couldn't have tried to obtain that analysis or something similar before the proceedings closed and i think that what's good for the h s is good for the petitioner there are two points that need to be considered the first being does prayer even apply in situations like this one the government's position is that prayer was narrowly decided and it addresses the intersection of two step of the statutory attenuated between the connection between the notice to appear in the substantive issue than this cases in other words the no here we're talking about i mean again it was brought up in the reply brief it wasn't litigated below but here we're talking about the initiation of the action which is the purpose of the notice to appear right and in the other case you're talking about whether or not you credit time continuous presence of the united states based on with a notice of to appear was effective and so it seems to me that when the court the supreme court says and pereira this is what a notice to appear requires a requires you know what a date time and a place and this one doesn't mean this is a defective notice to appear and what we need to figure out maybe i'm wrong the governor can have a different view we need to figure out what the implications of a so our position is that prayer actually helps us in that sense in that if you move to the regulations the regulations specifically reference the notice to appear as it's defined by the regulation and as defined by the regulation there's no for the notice of talk in place as for the long the larger implications of this argument i think it's important for the court to be aware of the fact that if it holds prayer applies and if it finds that the subsequent hearing notice doesn't cure the defect you will be finding not only vats all of the fish and noticed that proceedings are no good for all the fish notices to appear that were issued in cases of aliens who ultimately ordered for moved agree but but the one deficiency i'm seeing in your argument at least at the beginning when you talked about the differences is the statutes require a charging document of some sorts to be filed and in how you and initiated in there's references to the notice to appear to being the charging document so it seems to me the notice to appear is no less essential in this context this factual context than it is in the factual context of the stop time i'm wrong about that i think a notice to appear is necessary in this context around about the government's position is that that notice to appear should be defined by reference to the regulation in this case and not the statute where we're dealing with the stop time rule issue because the statute that lays out the stop time rule specifically references the statutory definition nature what do we do with that language isn't there some language in the i got it i'm wrong about so there's a reference to a charging document and i don't know that it refers to the document as jurisdictional again all i can say is that the regulations lay out what the acceptable charging documents are and the same regulation defines notice to appear as not requiring time and place where again i think i join in counsel in saying that the court's inclined to use this particular case as a vehicle for resolving conducted under two forty b of the act to conducted under two forty of the act to determine the portability or inadmissibility of an alien it commenced by the filing of the notice to appear within the immigration court another words jurisdiction that upon the notice filing the notice to appear in the immigration court that notice to appear has to have the time and date in place of the hearing and you're referencing eight c f r one thousand three point one four a is that it back to the board of immigration appeals with instructions from this court thank you very much thank you carol to cases submitted and we have a solution in