but it's still a focus should be the immigration judge's decision if the immigration judge issue detailed findings that maybe the case he did not just simply adopted no government start from case that says well there's a th circuit case and we cited it heart brief and i'm sorry i can't remember off the top my head it's in our opening brief the th circuit except notice to appear as functionally equivalent to a complaint in a civil proceeding such that the statements in that notice to appear or are i construed against the government because their admissions and the only thing i can say on your honor's point is that the notice  legally operative in that it initiates removal proceedings and forms the basis of those proceedings because we're based on how the government charges the foreign national determines how to proceed the proceedings go forward structures the forms of relief that are available ok but once so is there any way that we could determine his status without also looking at the immigration judges removal decision we have to look at them both for you to agree with that i think you have to look at the boat because the again the immigration judge does not have to find right but if and in another case where say it's more detailed if the immigration judge's decision where it's you agreed that even in this case we have to also interpret and analyze the removal decision and either if we thought it read if we thought the the immigration judge had ordered him or in the alien but as someone who would entered without authority then we would have to disagree with that determination for you to have well certainly if the court in nice proceedings we would have to do something with the immigration judges one her would have been would have had to have gone up through the channeling provisions an  know but that can't be the case here because again we're not challenging the removal order and it doesn't go into detail factual well let me let me ask you about let me try to get a judge more his question a different way your statement there quote you're  response is that the regulations provide for this warm up or we've to be channeled through c i s so if the government's argument is he can at face value it's simple he negates the possibility of that happening because it takes some camps with the right hand regulation then they then maybe right but i'm asking the question about why it's absence in your reply brief leads to the leads at least me to ask whether or didn't see a reply brief where you said no the government is wrong yes it's true we're challenging the c i a s decision but it's nonetheless not indirect challenge i didn't see where you gave us that argument people who were going directly after a movie or saying was defective in some manner hurry the procedurally or because it didn't have a legal basis but they didn't have a situation where the government's own regulation says the same time say well if you're challenging c i s is decision that you are required to go and seek that is an indirect challenge to our removal or if that's the government's it position then in all cases they would because he need to do something to have the removal if the app is the cancellation of removal is he at risk of being a removal in the adjustment status is an affirmative defense or does as a matter of law as a grant of adjustment of status by the removal order so they couldn't even try to remove him they wanted to say someone you know something doesn't get tour right and then talk to left him in the computer he's gone abroad for a trip and tries to reenter the country or something like that it shows order the immigration syfy quick credited the factual allegations of the government in the notice to appear and if you look at the notice to appear in its  entirety the the arriving early and box is checked that's true but the substance of the document makes crystal clear the government's view that mr mesa came in the country without being admitted or paroled as that in the number of allegations and then in the formal charge that follows correct i will note that so it's also a reference to how he was charged and again that's legally significant because it's a charge it initiates receives structures the proceedings determines what forms of relief and and the specific allegations which vary with status on the basis of the foregoing it is charged because you are subject to removal because you're pressing in the country without being admitted or administrative record with regard to removal ambiguous then it's still the case that the nd administrative order the one directly under review which is the denial of status by u s c i s the jurisdictional question before us c i s turns on answering that hypothetically ambiguous question and the u s c i s officer concluded that what was decided in the removal proceeding was that mesa was not admitted not paroled but what he was doing was trying to figure out what facts were found in a removal proceeding which seems to just take you right issue is that st looking at what point if it's really asking for here and then what us the i add to determine that point the st should have gone to immigration court as congress clearly three b one and that a lot that essentially that would have got you doesn't meet those criteria that those criteria he gets those criteria he does meet that a provides for so powerful maybe it does apply here but it would vitiate the basis for removal completely oh yes your honor absolutely here because here he would be applying for adjustment of status they found his marriage to even easier as i'm sure as i'm sure you know that hasn't been amended is roman at four right before that one says the jointly filed motions three open are subject to any time limit so given your ex your honor your position that the government there is an avenue available to bring a certain legal challenge and that avenue is immigration court that you know but i agree that i understand that argument i do get it and very soundly presented in your brace what was just difficult for me was that i didn't see any answer from the government is the argument that i can't do it and there's no you said you have an address are you not aware of the amendment in december tw it sounds like maybe you could get back to us let us know if you think that would apply to his case i guess you're absolutely can we can i can brief that and i apologize that that doesn't occur but i'm not sure how it gets he deals with the one honor i think i think you're correct on that point but the response to the government the places argument that he could not was not based on the fact that there was a new amendment it was based on the fact that he said he couldn't file out of time and the government responded by citing the regulation that you just read your honor what it says that the suicide tape reopening stu allowed for him to file then pass that ordinary thirty day motion to reopen period so removal order in effect is section eighty five and the nine clearly apply and the government is not proposing that plaintiffs just bounce between us c i s an immigration court constantly and never have this  then we might have a case here to decide whether a five of the nine apply here workplace it hasn't even gone to immigration court to have that legal issue decided yet me even attempted it and it would be i ask is already sop place i'm sorry the time position or does it have a view on whether we should hold this case to see what the supreme court says of the jurisdiction under you know your honor i the government believes that the court should follow the majority of circuit courts and here plaintiffs plaintiffs and i know the government to take those grounds and decide the grounds and then the court doesn't have to reach a to b i issue itself if we agree with you on the nine or a five those are alternative to restriction of grounds for dismissal clearly we don't need to reach the a a to the ground but to we we don't really have the luxury of ruling on final agency action or the merits skipping over a to b to get to finally agency action where the merits right because then we have still can problem right we have to decide jurisdictional grounds for merits one right yes your honor so the the alternative way that this court could decide this issue the st way the government stated that he had another avenue to go to he didn't go away by the united by the alternative way to do it is the way the the nd circuit did in saying where the almost exactly the same issue was presented so in saying what you cited in the government's brief the alien went claim in order to determine whether a five to be nine applies so st st and foremost the government would say that the the court should just look at what mike is claiming look the fact that he's trying to invalidate his or move order and then find well clearly you have to go to immigration core a five and the nine apply you have to go there st and you get it and therefore jurisdiction is barred so the court can do it one or two way so when we turn to the the approach that thing took we do have to look idea when on later in that charging document and saw that he's actually not charged as an arriving alien under the allegation part he's charged with someone who is not then and that it or paroled which basically negates any opportunity that any opportunity that he isn't writing english and then it looked at the facts in the i q thirteen where the border patrol agent saw places coming across the rio grande river and he was not the world and at that time and then finally they looked at the immigration judge's order where the immigration judge did not adopt the top of the document where it said you are in the right but adopted the target of an allegation as charged and with charges and the allegations in the document are not at the top of that n p a there under the charges and allegations section so that we have a situation where the in ca and the order of the immigration judge is ok st of all is the case law that talks about what to do if the notice to appear is internally inconsistent on the top because there are cases that are attached significance to that under the a p a standard of review when it's making a completely different determination not whether the alien is properly charged as a petition for review might consider or as an immigration judge might automatically mean someone is writing a one million u s g s is making a completely different agency determination or not if you want to take the position that you're making a completely different agency determination here i thought your whole point was that this is clearly trying i was trying to distinguish the b i a cases that attach a right i'm not sure that's a good i mean if that's your distinction is that when you're in a removal proceeding the box checked matters and has  checkbox does matter however at best u s c s here have a common conflicting document and have a document that at the top says you are in a right to galen and if that is all the documents said then i think like you would have a much better argument here immigration order from an immigration judge that has made the factual finding theirs and that are going to buy him a role right i understand that i remember the summer he says he was given humanitarian parole and he has a document  allien and that says the last operative line on jade twenty nine says subject were issued a list of legal services and documentation pertaining to pertaining to an n c a a which they were issued due to humanitarian determination and apply reasonable applied the facts considered all the facts and made a reasonable conclusion and absent and absent a finding by this court or a claim by  motion would be untimely unless this new regulation of yours so put aside that and we'll hear from you on that other than that his motion and your argument just was all about and i'm trying to figure out how someone gets an immigration judge to we a sponsor reopen we have to file and on time only legally prohibited welshing to re open and hope that it inspires the immigration reopen and what that c f r provision up allows for is a suicide on to reopen by the immigration judge and essentially what you do is you file that motion to reopen and say judge you have the authority under form they are as a matter of law precluded from contesting that issue in this case we do we are legally bound to take the check box for what it significance and can't be ignored what support do you have for the proposition that it's talismanic and we have to ignore everything else in the in that document and in the  record of by regulation the government has to try over the charges by regulation of government men and the charges during removal proceedings and any time the government actually can elect not to