that afternoon the judge almost certain is going to be able these in santa barbara and he is with us on this panel he will be able to see us we will not be first case we have today of the three is leslie be attorney general number zero eight thirty one eighty ms is it came out your name came and to provide mr leslie with notice of his of the availability of free legal services and his removal proceedings i would also like to argue today that the department of homeland security failed to provide mr leslie with notice of the date and of his removal proceedings get them that the last one just to deal with it first because i think the first one is this is far more important that the problem you have here is that yeah the notice was wrong but he did get notice the day before he did show up on april sixteenth and he did say he had no problem showing up on april sixteenth so it's it's hard to say show that there was anything in any way that was wrong here simply because he didn't seem to agree with that on the sixteenth well your honor i have to disagree that the fact that he showed up at the hearing on the sixteenth has any bearing on whether he no i agree with that it's it's a statement that he had no problem going forward well the judge simply asked him are you are you ready to proceed well that's sure that that's not the no this issue right that gets this that gets us to what twelve forty point ten says the me jump in here the cases that we have on notice or cases that there were no notice had been given he had notice here for the first time when the sheriff's brought him out of jail to attend the hearing or got notice that the sheriff was coming but the issue that interests me here is the question do we require more than naked notice sufficient notice to permit one to prepare for the hearing is the thing that i'm sorry your honor i'm sorry i didn't mean to have a point not that that's exactly what i would like to argue here today is that while mr leslie was present at the hearing and he did get initial notice that hearing was to occur the fact that he didn't have notice of the date and time of his hearing made it extremely difficult for him to counter the government's case here he does contest the fact that he's removable and he was not able to bring any documentation that he had with him to to contest the government's case that he was removable and that's really the problem with the notice here although he stated he was ready to proceed i would argue that being brought in you know into a tribe you know with with no notice of what was going to happen there or what you were doing any lay person in that situation wouldn't realize that it was really an opportunity for him to ask for a continuance to prepare but based on those facts isn't that issue at least somehow tied to the other issues and as much as counsel had counsel been present or had counsel been permitted would have been in a position to intelligently raise such an issue that is we're not prepared well your honor you could certainly argue that but in immigration proceedings you know there is no absolute right to counsel mr leslie could have proceeded on his own with with no problem if he had been given time to prepare so i really i think you can see them as linked and maybe in this case they were but in general i think there is to be two problems with notice here the first one being time and date but now i'd like to take judge ambra suggestion and move on to the notice  available legal service and in this instance the government hasn't even tried to argue that they have satisfied the regulations there were wired to give mr leslie notice of free legal services that he could have used during his i think the only issue we really have here is if this regulation is violated when it's pretty clear here it was should we require a showing of prejudice well we've asked counsel prior to argument to to to weigh in on honor and i think that the the second circuit's ruling here is much stronger than the ninth circuit the second circuit relies on a line of supreme court precedent based on a case called the carty and that case says that whenever a agency violates its own regulations that have been passed for the that that are intended for the benefit of an immigration petitioner there is no need to show prejudice in order to for a petition or to get a new hearing the ninth circuit was dealing with a different kind of dealt with an i c c regulation that was passed merely existed merely for the convenience of the interstate commerce commission and granting licenses to commercial carriers you have a there's a good argument american f the reasons you're stating here you're dealing with there you're dealing with something it was purely administrative and for a different purpose that is the prism list of competitors in order that they can assess among other things the competition the cetera but  pertain to the point to that particular petitioner here you've got about as basic a right as one can think of the right the counsel and now we have a case charles which if you read that yes you're on it appears to me if you and if you have in front of you that there may have been a mistake in translation here  take a look at page three eighty nine if you have it it cites a carty but then it goes to the last full sentence on that page about twelve lines up from the bottom it says although the a cardi doctrine with me there yes your honor originally contemplated that in agencies failure to comply with its own rules automatically would nullify its actions the supreme court since has required that claimants demonstrate prejudice resulting from the violation and then unless the rules were not intended primarily to can for important procedural benefits on individuals i think the word not is a mistake that our court made including the four circuits case in morgan and the fourth circuit is taking it from american lines but it appears that chong doesn't make sense there and i but it but it does quote morgan the force or case correctly i just think morgan i said that or said people little things mean a lot i think morgan incorrectly cites to america cites american lines and puts a lot in the in the wrong place well the other thing i would say about american lines is that it itself distinguishes a carty i mean it says that the dogs are not applying a carty there and i think that's an important point to keep in mind that calderon medina simply lumped a cardi in american farm lines together with with no consideration of the fact that american farm lines had and was in fact saying it was applying an entirely different line of pressure than a party president one where regulations were not in acted for the benefit of the people contesting them and therefore prejudice may be required in that situation but here where an agency violates its own regularly just focus then needs to be on who is really what interests whose whose who or what interests are being served by the regulation yes your honor and here mr lively interest clearly were being served by the regulation the regulation exists because the immigration ok thank you will hear from let me ask you a question at the outset pertaining to your submission to us you say that they're on page eleven of your previous thirteen page brief that there is quote there  sist this court does not respond at all to the main question about the requirement of the immigration judge to if the government does not present a defense to that basic issue presented by the appellant is the government precluded the privilege of being represented at no expense to the government by counsel then you have your regulation eight c f r twelve ninety two five b whenever an examination is provided for the shot the person of all shall have the right to be represented by an attorney or representative and then what judge smith quoted at the outset that basically it's almost like this is a rote reading that should be done it's i don't you know it's like part of an instructional manual to an immigration judge as to at least how to begin convene and then conduct an immigration hearing i mean it's like base each it's extremely basic it's like a checklist and there can be no argument to the read into this exchange any depth of ation of his right to a full on fair hearing there is simply no it to counsel in removal proceedings but in coleman there is no constitutional right to an attorney why the government didn't see fit to list this court and making a response thank you no thank you and again i apologize brief purchas fight a different perspective ok if i'm up from a wholly different perspective i mean you don't cite the the provisions here there's something i don't know maybe you assigned this to somebody who was just brand new on the job but i mean your your section is the one that knows this stuff backwards forwards and sideways or yes and you can come through here the only argument you have is that we as a court should side with the ninth circuit in called around and find the prejudice must be required and that there wasn't any prejudice here in the problem that you have with respect to that particular argument is that you're dealing with individual likely he went once he did appear how he could not divine that ok he said they said you know do you have counsel you have a right to counsel that having been said let's assume that although it's not in the record as a matter of absolute fact it was received does that somehow obviate the mistake it in effect he was he had no money and he decided to proceed without being told there were free counsel available i mean we just we disagree on the on the first element there there is every indication in the record didn't you are you in the brief consented to come before us you know you have a responsibility to assist the court now you are bringing an out an human that's not in the record and and and i'm not sure that we can even notice it if you did not present that that letter and it lacks any indication where where does your where is the say in your brief that you say the record is clear petitioner was offered an opportunity to request additional time in which to locate counsel and it declined to then how are we supposed to know that if you don't tell us i mean you come in here telling us that today but it's you know time's up even even characterizing what occurred before is the applicant was given an opportunity for more time is a generous construction of what the i g actually asked which was skewed more in the other direction to wit all right do you want to proceed and answer questions of the court to or will that that that is a major disjunctive isn't it would you like more time is a fundamentally different question a burden simply is not on the immigration the burden is on the immigration judge to follow the darn regulations yes sometimes i think don't want you to feel like you're being taken to the woodshed and i'm sure will is sometimes frustrated with us and we are sometimes frustrated with oil speaking only for myself i am sure you folks have a lot of cases in hand for a lot of years now there are some of the oh that it seems to me call for an attitude that steps back and says you know the i j a did blow it here and maybe we ought to just concede that up front and we take the easiest course i again speaking only for myself given what i do know about this case i would want to give odds on by the i j a and absolutely contrary to what the regulations explicitly required him to inquire into this case to me seems like a perfect candidate for the point is there's a process there's a way that we go about doing things and it really i was telling someone yesterday that i remember my second month on the job where i had asked for argument a case of the peers it wasn't much on the merits but the there was a process issue and the government attorney came to the oral argument and stood up and said i'm here to tell you that we agree that there was a procedural problem here we've looked at it and we think it pick and as i said if you try to cite truong to us charming relying on morgan contains a misplaced not because they both rely on american lines and it's pretty clear that american lines when it's a given to for the hearing what what is that what does the record show about the notice other than that he was brought from incarceration  they respond to an immigration hearing sure he's there and the and he certainly had some sort of know this but i want to know yet that's compound the situation is even particularly worse when you're not even told the next day that you have a right to free counsel and you simply do not have enough time to prepare i mean bottom line that is the it's like being told that you have a major exam tomorrow and you don't you have even had the benefit of anybody telling you what's in the course i and judgment his answer even if it is was in the record you still haven't dealt with the question do you really have time to prepare here and also with respect to something that's his base this is really a lay down h i think it is i think it is so since i read to kill a mockingbird that i've seen someone with a first name  i just i just want to make one final point that i think you clearly know but the government stood up and said that ruling from mr leslie here would put form over substance and i think that's just incorrect here this is this court has recognized in other cases such as charles well that there are some errors that are too central and court proceedings legitimacy to require a prejudiced standard and i think this is one of them and if the court has any further questions i'm happy to hand over the questions thank you honor