here i took over this case from petitioner's former counsel when he became an immigration judge i am familiar with the case with the law and i stand here before this court to ask the court to find that this court has jurisdiction to date that it was prepared that should control in this particular process would also ask the court to find that the agency violated its own regulations under eighty a part two thirty eight when i prepared the notice of intent to issue the final and ministry to border on october twenty fourth two thousand and sixteen did not serve it on the petition or prepared the final administrative order on the same day october twenty fourth two thousand and sixteen signed it on october twenty sixth two thousand and six sixteenth and serve both documents on the petition or on october thirty first two thousand and sixteen by doing so the petitioner w prevented from challenging the immigration officers finding that placing the petitioner in two thirty eight proceedings was appropriate by concluding euro news really that that the administrators order which is which was prepared october twenty fourth and it indicates that it was served on the thirty first on let me ask you this counsel let's assume that  those forms of relief by not having the ten day period when he was served with both the document on october thirty first he was essentially then in the mode of challenging before this court because his ten day period to with that and i believe it with all due respect to the government and to this court as well i believe that that did this in genuine argument the petitioner was placed in a position where he is presented with two documents one is the intent to issue the final final ministry of order and the other one is the final order so even if you refused to accept service those two documents were already preset had already been prepared signed and the actual opportunity to challenge those findings was circumvented by filing or peace sending and giving those documents together to the petition on the same date the spirit of the law was was not followed the regulations allow for a ten day period for the petitioner to opt to present a rebottle and the government's argument that well he refused to sign and so what are we supposed to do should not search should not be used to circumvent the government's own regulations of for having to follow those regulations issued he was the day they took away his didn't his ten days the ten days commence with the issuance of the intent to issue the final i ministered of order did not have a meaningful opportunity to present at the fence and to to get an administrative record before this court for a proper a proper adjudication of his case what do you want to do petitioner in to forty proceedings or to at least under two thirty eight allow him the ten day period to present re bottles and to demonstrate that section two forty five eighty four does not constitute a crime of violence that he is not the individual it's not appropriate to place him and in section two thirty eight proceeding proceedings excuse me and instead place him under two forty proceedings i believe that the record needs to be valid at the agency level there has to be a meaningful determination of whether or not the petitioner is negative fallon that determination was cursory it was made by an immigration officer with the authority to do so but there was no excuse and so i had the honor let me ask you though what happens if it is determined that he is an aggravated felony either by us or by the agency that the end of his opportunity to obtain any other your own or no i believe that if a determination is made that he has a now very aggravated felony he still should be provided an opportunity to seek withholding  removal even an individual the final order with the final i minister to order under the immigration under the asylum laws is eligible to seek protection under the would hold the convention against statement do you fear do you fear relief and the answer is no i believe that with the development you know more deep questioning of a petitioner of the the the assessment or the to the termination of whether that person has a credible or a reasonable fear of of persecution must be assessed i do see an immigration proceedings where a question is asked just not an asylum good morning your honor is in may please the court attorney on behalf of the united states attorney general the attorney general feels in this particular case that this court is without jurisdiction in light of petitioners failure to file a petition for review with this court within thirty days of the final order of removal i think what's important to recognize here and my my sister counsel had mentioned the notice of intent and the dates on the notice of intent the notice of intent is irrelevant for  we have an individual that upon upon it detention by ice officers specifically indicates no fear of prosecution no for persecution for torture harm if removed to proceeding this is a civil proceeding can't be held against him in that particular context and as a result i think that's what these ice officers did here you had to pick up on october twenty fourth two thousand and sixteen you saw the factual record developed at this individual is an aggravated felon for his conviction he indicates no fear of persecution no fear for of harm or future harm to be returned to guatemala as a result the ice agents look at it and said ok this is effectively a two thirty eight expedited removal case and as a result we're going to prepare the paperwork which they did this is why that on the final grew a rebel counsel judge time and i have three related question for you first how is this case different from the case of the united states versus can solace decided by the ninth circuit in two thousand and seventeen in which the government conceded that essentially the same thing that happened here namely receiving the notice of intent and the final administrative remov is that here you have an outright refusal of service and acknowledgement of same and that i think is that this thing wishing factor here if there was not a refusal if he caused the storm at that service of that notice of intent on the fire on that same echo there subsequently would have been a further determination which have taken it and i think that in that in and of itself is what makes this particular case this i think for purposes of the service of the fibro i think you make too much of the refusal to sign the document you know i understand why you would make such an argument but he was placed in a position where he quite possibly wanted to figure out what he was going to do and if i were to infer anything from that given that he's challenging it now he could have been thinking well i don't want to give away any rights i'm not going to sign anything right now entitled to have ten days to figure that out and so what the government did is the government cut short that ten days and so now you're saying well i'm entitle to cut short that ten days because i'm going to construe his refusal to sign as an concern with regard to the timing here but i think what we have to realize is where we are in these expedited removal proceedings in the regulation calls for ten days with the regulations all call also call for under eight c f r section two thirty eight point one i believe it's  that if there's any concessions made that the admitted that the immigration officer in this particular case the asylum officer shall serve a notice of intent and i think what was construed here and what transpired here is that this individual has no affective relief if as your honor recognized in the documents once he is encountered by thirteen he once he was encountered by immigration officials he specifically said he had no fear now if he was if he did indicate a fear for purposes of w withholding or protection of the convention against torture then there would be a reasonable fear interview conducted in that reasonable fear and if you conducted some depending upon that the decision in that particular case could have been reviewed by an i j or it could have been pushed up to but as this court recognized in calderon sago to which i think is an equal protection challenge these proceedings are or constitutional so this is it is within the discretion of the of the attorney general to conduct these proceedings what is clear and i think moreover to so to your questioning previously really is if we if we really take this ball further is what is the prejudice here i think the case law is clear  five aggravated assault a one through four is a crime of violence for purposes of eighteen u s c section sixteen i don't think there's a dispute here if he's an aggravated felony then he's not entitled to discretionary clear based the point of our reading of the of the case law in this particular circuits dating back to grow hay to which was under a prior version of clear forty five which talked about aggravated assault and aggravated assault be crimes of viol for purposes of eighteen u s c section sixteen that is decision has been repeatedly affirmed in the vino's and him in is talking about force likely to produce great bodily injury remember the california penal code has a simple assault provision section two forty now if he was he had been convicted under section two forty i may say arguably there's a decision or determination or a legal novel legal issue here for purposes of the aggravated felony conviction but i think here what's clear and what this court has is this thrust upon me and on numerous occasions is that the board in immigration appeals doesn't deal with california law doesn't that's not one of the statutes that they interpret it the purposes of deference and the like and what i'm telling bring into this court is that we have what's unequivocally clear an aggravated felon and two thirty eight allows the attorney general in this position the say you're not entitle any discretionary relief you may you may request withholding or protection of the convention against torture but you never did you never brought it forward not only that when you were first encountered you indicated to quite quite the opposite that you had no no reasonable fear and if any fear  of of of harm if you were returned to guatemala and i think what is more appropriate is that this this idea that i think that sister counsel is suggesting is that he deserves or this must be determined before an immigration judge and i think that's what calderon sigel risp aciphex lee kind of came up and said these proceedings are ok and if we recall in their opening brief petitions opening brief they attempted to challenge eight c f r section two thirty eight by arguing that these deciding officers are are committing acts or digital acts and would have problems with that and we have problems with that and i think calderon secure a flight on his feet says so i think we're really in a situation here where you know s hand the petition or simultaneously a notice of intent on the final order of removal and then even if they appeal the next day so sorry you have thirty days to run that can't be right though i think those i think in those particular facts when you're suggesting perhaps malfeasance on the part of the agency with an intent to deprive an individual from jurisdiction of this corporate i think what happens every day in the cases that i see every day is that you have a board decision dated one day it's subsequently mailed that is not received by the alien or aliens counsel for three four or five days later it does not begin at the time of that service but according to the statute it begins on the date of that order so i think that situation is analogous here coupled with i think we have a in interesting set of facts here with regard to the refusal to acknowledge service in the same so in light of that i think that's and you know and i agree that your your analysis there obviously with three with regard to the purpose  of of taking jurisdiction away from this individual from this court is a problem but i think it behooves us as the attorney general to to follow the statute here which really says thirty days from the date of the final order of removal and this particular felony under the under this court's case law as well as california penal code and as an aggravated felon he's not entitled to any discretionary determination of discretion or relief by the attorney general only withholding or protection of the convention against torture and in this particular case he denied same once encountered by ice officials and as a result it would have for purposes of of this court even considering entertaining a remain which i would i would not want to happen of course there's i appreciate the opportunity if we were to agree with the government that every few soul to acknowledge service strips the way a petition or any meaningful opportunity to talen his claim before this court then section two thirty eight the section that provides a ten day period would be meaningless meaningless here we have the two documents prepared in fact they were prepared the same day they were dated october twenty fourth the final the final notice was signed on the twenty sixth both of them were served on the thirty first so  i would i would request that the court take those facts to heart and find th section two forty five a for a crime of violence if we simply give the authority so i'm not saying that section two thirty eight is unconstitutional i'm saying it it was inappropriately applied it was not applied within the spirit of the law and so in this particular case i'm saying that there was a procedural defect that has prevented the