honor this case the government will not rehash the arguments that it just made before your honor's in the prior case however as the court noted there are some factual differences between these cases in this case the notice to appear did not include the address of the immigration court in addition to the date and time of the removal hearing however the argument and a finding by the district which addressed the same exact issue really is whether the jurisdiction immigration court is affected by in the words of that case the date time or place of the removal hearing at issue and personal service quote care of a custodial officer at the detention center where the at that time responded at this time pelley was residing in the district court on its order at page four of the government's excerpts here indicated that the notice of hearing was served on the defendant and the defendant here does not contest service he simply doesn't recall according to his declaration that was submitted below whether or not that he received that hearing service so the only evidence we have in the record is a step at a service indicating that it was served on the defendant there is no evidence in the record rebutting that or even contesting it so  district court's order however found that jurisdiction was still not vested in the immigration court here because it did not find that the hearing notice was timely that the reason the district court is incorrect there is because in or is timely the district court reached back to two section one thousand two hundred and twenty nine which was a section that this court in care guess he had already found had nothing to do is subject matter jurisdiction and yet pull out from that statute yet another jurisdictional requirement this one requiring ten days prior service ten days prior service which is explicitly not to vest jurisdiction but instead to provide law would not reach into the immigration courts lawful authority to hear the case and strip that authority from the immigration court what the law would provide as there has to be some sort of remedy and where the remedy would be fact to terminate any event where i responded  by an alien in that situation that he's just been dragged in by what i thought your argument was going to be in this case that it was more than ten days from the n c a a but it was less  th his st removal hearing did not occur until october st the notice of hearing was served in the interim about five days before the removal hearing and add the removal hearing and this is important the immigration judge because we do have the audio recording  as exhibit one with this court he informed the defendant as part of a group hearing that he did have the right to counsel and that in the immigration judges words if they want time to find an attorney all they have to do  when the defendant was called individually the immigration judge didn't even wait for the defendant asked the end of the i j a offered him an opportunity affirmatively to find an attorney and the defendant replied that he did not want an attorney and indicate he wanted to proceed that day which is what the immigration judge pretty dense or not well responsive in terms of what his waivers might have meant does that mean anything or does that offer any opportunity do we have a finding that he was again your honor if it was a question of a waiver we're no longer talking about subject matter jurisdiction if we were in the waiver would be kind of useless you can't do a little black america has it's a subject matter so i agree with you there argument that the defendant raised below which is that the hearing didn't comport with due process for reasons other than the immigration court not having jurisdiction and yes whether or not the defendant waived would be an issue to be litigated below government and is appealed and of course would the case would go back and the district court would have to face that issue as noted in the government's brief though it does appear as though both parties have reached the conclusion that if this court were to determine that the i j a below in their removal proceedings did not care in finding that mr delcarmen of arka indeed had been convicted of an aggravated felony of the time it is removal proceedings now we're running short on my time here but this is quite detailed in the government's reply br then this court can address that issue as well and finds that there was going to promise there on that point and i'm going to ask your colleague this question to it appears to me that both sides want us to decide the voluntary departure issue on the eligibility and whether this was aggravated felony or not or whether the i j a had an obligation to inform the defendant of that is that something that the government wants t decide yes just well if nothing else for judicial economy it's a pretty clear issue it's a matter of interpretation of law i think all would be best served by this court making a determination as to whether or not that conviction costed an aggravated felony and then  mand to the district court to address the issue of possibility if it disagreed with the government and found it an aggravated felony therefore preserving the defendant's right to make up plausibility argument otherwise  address just as question the and yes in the event the court agrees with the government on the herrera here and give the analysis i do want this court to decide whether mr armitage market was eligible for voluntary departure i believe the by at the apple to try and address that so i believe prejudice or you're referring to d three or are you referring to prejudices of other prejudice or d three as to the alternative due process argument we are leaning that we don't have to satisfy d three wouldn't the i j a have had to have been clairvoyant because it seems to me that the state of the law at the time your client appeared before the i j a was that as had been treated in the th circuit as as an aggravated felony  and at the time of his rule hearing that's not what the law said in the th circuit subsequently recognised and there is th circuit case law that specifically says that that should have applied retroactively and it was a due process issue for the judge not to have known that or not to have made that ruling so there is case law and some issues of law no but here we're talking about is what the i should have told your client so what what in your view should in that level of analysis about why but he should have found that he was eligible because is conviction was not an aggravated felony and he should make a record arguing for voluntary archer so even though at the time no one had said in the th circuit that it wasn't an aggravated felony your view is that the should have told your client not an aggravated felony eligible for voluntary departure even though at the time it wasn't actually eligible for voluntary departure given the state of the law at that time well i think my argument is your honor that he was eligible at that time and then the state of the law was clarified is not a federal felony i think the th circuit decision that the government site clarified the law i don't think it changed the law so i think the law at the time of the rule hearing was that he would have been eligible simply wasn't recognize after and that is the problem it does require some clairvoyance but i think the important point is the th circuit did not change the law so the immigration judge still got a lot wrong it's just a benign circuit had not so told him and so after oppy people in your client's position at the time you're quite right before the i j a were not eligible for voluntary departure i believe there was a b i a ruling to that effect your honor the th circuit ultimately trump us the courts and any other questions about the due process issue i do briefly want to speak to the career issue specifically judge smith the hypothetical what if the notice of hearing wasn't served at least ten days out what it was served the day before it and seconds and it was served this is an important point the government glosses over it was not personally served on mr del carmen of arc had it been so a service certificate of service has a space to indicate that it's personally served on him it was personally served on a custody officer so there is actually no proof in the record that mr don't carman of art personally received the news of hearing the judge at the removal hearing did ask whether he received the notice to appear but there was receive the information all that in a timely fashion so there has to be some time component for fairness of when the non citizen gets the notice of hearings counsel how can it be that jurisdiction on is lacking if the ten day notice is waive all i mean how can you ask it if it's lacking how can it be wave a ball on the statute it does your honor i think that the the reason it would be wa fair for this court to infer that ten days is timely i don't think it's explicitly relying on the statute to say if you don't comply with the statute that's jurisdictional because it's waived what this court is doing is saying under your feet and green the  officer personally handed it out to you read the documents your honor i believe what is more likely there is an immigration couper with was wouldn't the service on the custodial officer in that circumstance seem to me personal service your honor i think the issue is there have been factual cases documented where it's just i notice being served on the custodial officer it is not served on a non citizen and so i think at the least they can have him sign to acknowledge receipt or have the officer submit a declaration saying yes i gave it to him and we don't have anything other than the certificate here which like just just briefly on the hearing notice issue your honor the government obviously were relying primarily the argument at the hearing notice is irrelevant with respect to jurisdiction whatever procedural problem it might give rise to it's relevant to jurisdiction but it has to get a service here is evidence of in the court can give it whatever weight it wants but there is no evidence in the record of non receipt of non and sixty and shifting the burden to the government to show affirmative delivery of a hearing notice here which is essentially what the district court seemed to be requiring in at least in the next  that's what the government is saying your honor is that if if a defendant at least put forth some evidence that he hadn't received a hearing notice then fine we can litigate that but to find that in the absence of evidence in the absence of actual physical personal service whether by mail or through an intermediary custody officer to assume then that that hearing notice it would your honor in those administrative proceedings and this is something that the immigration courts grapple with all the time especially in the context of inattention airings and so although i am saying that the defendant in a thirteen twenty dollars later on would have to show some evidence that hearing notice was in receipt it could be as simple as what is required at the administrative hearing which in the context of st class mail for instance all that's required under the law that i circuit is for they only in this