notice to appear that fails to include the time and place of an alien's initial proceeding is not a notice to appear at all at least in the limited context of the stop time rule the question before this court is whether or not a subsequent notice of hearing which contains that omitted information can cure or perfect that initial putative notice to appear respectfully we would ask that you answer the question in a negative and hold the nose a hearing cannot trigger thirty three main points in my brief time this morning the st one being just the plain text of twelve twenty nine dollars b subsection d one which is the stop time rule ready mandates that only a notice to appear may trigger now it's our position that the phrasing a notice to appear is very important because it suggests a singular document a singular notice not a series of notices not a series of documents issued days months weeks years doesn't of those we would suggest says a singular document and you could have the with the opposite of singular or multiple of the plural thank you the plural document still using the word well i guess that i would point to the rest of the section which were says under twelve literal meaning you would grant could go either way on a singular notice  respectfully i would disagree with your on that how can you win when ordinary english does this all the time i see a book that a book can have two chapters i guess if i get the encyclopedia and it could have twelve volumes i guess my thought would be if i give you a notice of my my birthday and i say my birth i have a birthday the don't really have any notice of the birthday if i if i give you a notice of my birthday it's my birthday is is on this date right but you've only put one piece of information in that notice what if you said i need to give you a notice of my birthday and address so you need a notice of that  birthday an address why can't that come in one piece of paper has your birthday about it another piece of paper has your address on it and now i have the notice of your birthday dress up like can it be on two different pieces of paper i guess in syria could be in two  and forty eight why isn't that a notice it is it is a notice of something but it would be a notice to appear which is specifically defined well it's defined as including all those elements and once you get up to all of the elements you've got the notice well i mean i'm not saying that's the only reading because i can't see how that's not in english reading but what sort of intention with the english language i'm in trouble grasping  the st document is not in those to appear at all under perera is part of the reason why it's not a piece of a notice or an incomplete notice it's simply not a notice at all and because it's not a notice at all it's it doesn't to me at least make sense that the notice comes into being only when potentially you know in theory at any point in the future you receive some other document notifying you of the hearing which is issued by a separate body of the immigration court as to the individual prosecuting the case the other the other thing i would highlight is at least in prayer and nd it's right just as a matter of logic still not sure i understand that so let's say that we set an essay  for this course that i'm teaching an essay shall include an introduction a body and a conclusion and a student hands in an introduction and a body but not a conclusion at that point i might say well you haven't written an essay because my essay requires three parts and the student says oh i'm sorry i failed to give you the conclusion and then gives me the conclusion at that point why don't i have an essay well so it might not have been an essay at the beginning when i only had the introduction in the body but once he gives me the conclusion i feel like i have an essay now why not i can i can definitely see the logic of what you're saying i guess what i would respond to is the and if a notice to appear is not merely in from please but it is not anything it's and it's a nothing for the stop time rule because it doesn't at the time place of hearing then it doesn't make sense that it could be later completed it benefit of pereira but because of that the immigration judge didn't reach any of the discretionary factors and just after analyzing his case and all the front end so so if there if the party wanted to reassure voters to appear we wouldn't quibble with that that would be a notice or why because it's a notice not a single document but it's being sent collectively as one although if they sent one percent in both in the mail they sent one in the mail in the mail man already you know person already picked it up notice that would be insufficient it doesn't have to have the same title like it all has to be like once you can tell it's one continuous document or what if we put it notice to appear as separate documents notice to or collective package to do the alien it is a written no but yes well stapled or all included together well i guess to my response that would be interpreting it that month why does that matter as long as i mean maybe it would matter because they only would say well i never got this one and therefore i never got all the pieces so but if the aliens has yeah i got every good morning michel slack for the attorney general william barr the board's decision in this case should be affirmed for two reasons st of all there is no proper issue before the court today because any issue that was raised before the board has been waived and the only issue the petitioner raises in this case was never exhausted before the board the nd reason that the board should be affirmed here is because given all the notice required by the statute required by pereiro petitioner should be permitted to evade the consequences and the purpose of the stop time rule by continuing to accrue time during the pendency of the proceedings that were completely for the purpose that was behind the stop time rule beginning with the exhaustion problem as i doesn't raise the issues to a spontaneous addresses the issue in the matter of the context of continuous physical presence the issue that was raised before the board had to do with the factual finding that was made by the immigration judge about whether or not he had actually established the ten years of continuous physical presence so necessarily the board has to address well when does that time and the the board's not addressing complete and full explanatory conclusion about whether or not the two step process is something that would be justified in light of pereira in fact all the board says about it is one sentence one rather conclusory sentence the respondents accrual of continuous physical presence for cancellation purposes was terminated by the service of the notice to appear which placed him in these proceedings in combination with a subsequent notice of hearing informing him of the date time and place of the hearing and with the c f site to pereira that's hardly the kind of full immigration judge that's not the situation here the situation here is all that the board did was sort of set the the end of the continuous presence for purposes of addressing the issue that the pitches sure did ra he not raise the issue that he was foreclosed from raising the issue before the board of immigration appeals but to to correct petitioner on that front in the record on page twenty three  find the the manner in which this issue was addressed in the brief to the board of immigration appeals to the board petitioners brief says quote the notice to appear terminates the a curl period and quote no this issue is currently being considered by the supreme court in pereira and i would like an opportunity to address a given when when the supreme court addresses that issue nothing in that nearly two months later there was an opportunity then for the petitioner to have raised this issue with the board of immigration appeals had he done so we would find ourselves in a situation like we are today where all of the case law and all of the issues that more and more expansively deal with this issue were decided after the briefings complete in this case we have the mendoza briefed on the legal questions for us here right but the cases where the board actually addresses the precise issue has the board doesn't have full explanatory opinion in this case it's mendoza hernandez where that takes place your view that we can't we have the court of appeals can't take account of the board's intervening authoritative published opinion in construing like for example if we were inclined to give chevron deference you say we there's nothing for us to depart no of course your honor that's not that's not what i'm saying and i apologize if if i suggested that what i'm saying is that the ordinary course of the way and an issue is supposed to be handled  is that we're supposed to be looking at the the the decision at issue and we didn't have this issue fully briefed and decided by the board of immigration appeal decision what is at this says that there's no jurisdiction in the form and in the jurisdictional sense right normally you have to have something in the statute that says we can't address something we like waive the exhaustion requirement that that's a suggestion that this six circuit see is that is something potentially wave actually wave a ball we would be acting illegally if we ruled in your favor and didn't reach the exhaustion  cottage jurisdictional stage and at the merits stage i'm wondering whether it would be illegal if for us to affirm on the grounds that you're right on the merits rather than on the grounds that it wasn't exhausted if it's jurisdictional in the sense that we don't have the power to decide or we should be deciding in one way or the other i mean if it's not jurisdictional in that sense it's rather just a a a rule that we can rely on to uphold the substance of the decision because of because the body below never had a chance to examine it so in a sense it was waived if that's all it is then what would we be legally permitted that's my question to rule in your favor without addressing the exhaustion issue or by saying the purposes of the exhaustion issue here certainly seems like the be multiple antelopes receive the same day this is clearly not covered by the plain language of the statute this stretches beyond belief the use of the singular article a several different notices gets to a point where it might confuse a person so that they didn't really have proper notice that's for another case that's not the case before us also petitioners reliance on pereira also over stretches the limits of pereira several times in pereira the supreme court says it's a limited holding what the supreme court is deciding in pereira is not when does time stop it's what makes time stop and it decided that at minimum what makes time stop is notice of the date and place of the hearing in fact in footnote five the supreme court  whether or not having notice of the date and place is sufficient for purposes of stopping time the titian to receive that in the notice appearing in fact appeared for the hearing w and went through the all of the proceedings and not until it comes before this court does petitioner cry f petitioner asked this court to rely on the th circuit's recent decision in lopez but that decision is wrongly decided for a number of reasons st of all as i was pointing out it stretches perera beyond its limited holding in fact as judge callahan into cent in the lopez case points out this wasn't even an issue in pereira in pereira the it was there was no question that mr perera had met the ten years of his physical presence because he wasn't served with a proper notice appearing in two years after the notice to appear in that case it reads too much into the use of the sing i want to point out elsewhere in the us code at one u s c section one the dictionary act specifies that unless the context indicates otherwise words imputing importing the singular include applying the several persons parties or things because in the nature of the english language it it's not unusual to say a and mean something that's also can be plural also  a and granted the board doesn't have any special authority in being able to interpret supreme court cases but it had to necessarily spend time addressing carefully what the poor court h and what it didn't hold before it moves on to look at what the statute says and it does look at what the statute says to acknowledge that hey it could go either way we could say that the use of the a before notice appear is of significance but we find that it would fulfill more fulfill the congressional intent if we allow it to be multiple notices at least a two step process as was the case change its mind and interpret it differently that's an interesting question whether or not your honor whether or not an on bonk board decision differently constituted i suppose it could overturn itself the attorney general  right for the different reason that it was the clear clearly the only answer but it but to the extent we would rely on chevron it would be subject to overruling in the future by the yes and then the court would have to readdress i said that to to omit this information would deprive the notice to appear of its essential character i guess and to that i would say that again it's referring to it as a and as i view it a singular rejecting a different kind a here here so there's clearly four wheels well there's there's four wheels i mean that's sort of a door and a way of saying it was a different argument they were dealing with when they went through the linguistic  turn that they went through if that's true your honor i think they're still there still some and it's tossing up like ability here all right fair enough does that a document to be a notice to appear does it have to be label to appear on that point i would say that it's it's a stature would be ambiguous i don't just as to the specific label the top words as notice to appear i do not believe the statute speaks to that specifically so and so on that point i don't believe it would necessarily have to be held as to the omission of the time and place and it so it only spoke to time and place it did not affirmatively rule on the remainder of the statute but the statutory language is clear and that a notice to appear must include the items listed