i appreciate the privilege of world argument this case has two parts and i plan to mostly discuss why you should throw out a matter of common real l unless you take me in a different direction i understand that even if you throw out a matter of initial notice whether amended charges can serve as a stop time and what type what standard of diligence the department of homeland security d h s should take in creating charges and then i'm going to start my main argument everyone in this courtroom is invited to my birthday party and i politician it says come to america's fiftieth birthday party cupcakes and ice cream brain teaser question how many people how many cupcakes should i order from the caterer only one because i didn't give you proper notice of the date and time to appear at my party there are several levels of statutory  interpretation argument and the first one is the plain meaning of the statute what it says notice to appear and it was in quotes it wasn't with an initial capital letters it was all more case to appear has to mean something and in fact congress had amended the prior statue the previous similar relief was called suspension of deportation and when the statute was amended it was changed the notice was changed from order to show cause to  appear and the requirement of having the date and time on the notice tell me i'm just curious administratively in terms of how this area the law works is it possible that this may not affect how you interpret the statute but is it possible that one group promise of homeland security in charge of identifying people that are not in the country properly but they're not necessarily the group that sets the time and date of a hearing so this is a possible that one thing that's going on  it maybe doesn't have any impact on the chevron question but just practically speaking is that one possible reason why the invitation to the so called birthday party wouldn't have the date and time of hearing well i mean it is  the notice to appear in court asking for the hearing to be scheduled and that is very common that d h has served notice to appear and i would say i'm using this word sits and it's in fact there was a ninth circuit there's a situation where people who have extremely unusual exceptional extremely unusual hardship they often want to be in the removal proceedings because you can't apply affirmatively for cancellation of removal unless you're before the judge and in connection with applying for it you get employment authorization people don't want to be in limbo people who who feel that they have exceptional extremely unusual hardship they want to legalize their presence and and so for example i hope you got a letter that i sent you about the legislative history a lot of what i think this is an ethical a common thing that people do is that they correct me if i'm wrong on the facts in effect he stopped for traffic problems for whatever reason they think he's got immigration problems he gets the notice to appear that day now they don't suck up the hearing an actual date for about six weeks although that's still within the ten years the real question is is the for these purposes is the function of the notice of it to appear or the reason that it's important to give him certain types of notice or in fact to stop the time you've got his worries which if it were trumped up you might have an argument but you've got the government's side which is you don't want bureaucratic delays to let him get this in effect an earned time of legal presence and the notice to appear sort of indicates you know we've got you on the hook now isn't that what happens that's not exactly what happens what i believe happens is that v h s serves a notice to appear and then exercises prosecutor turia will discretion which is normally considered a good thing not to put the person in proceedings and only when they file it in court which and if for example in this case the day that they charge you mean an immigration immigration court the day that they filed an immigration court court sent out the notice there's no problem with the court sending out notices the issue is that the h s sometimes decides not to file their notices in court even when aliens are asking for the notices to be fi i write that in this case the date that was initially set was still within his ten years it was then a venue and postponed but the initial appearing it was just the same as if he'd gotten it with the right date on it right he would say that's why i say that kind of where i mean why isn't this just purely technical why isn't this like an indictment or you say well they they had a typo on the statute or they didn't put my middle initial and he got a notice to appear he knew he had problems they had a date that was set up pretty promptly so why should he get pushed beyond the ten years well there is a case that i cited in the last paragraph of my three page letter brief a country the equities that they are cruel during the period of the favorable discretion actually should be weighed more rather than less deputy is a little bit different because that would be a situation where somebody actually that was a situation where somebody actually had a removal order which was not executed they maybe maybe you know there was no real exercise of discretion they set a hearing within six weeks right in this particular case that's correct but the decision that you're going to make is going to affect a lot of people and i know that i know that you don't give advisory opinions but i know that you also think about all the repercussions of your decision and i'm afraid that it could harm a lot of people who isn't entitled to deference but aren't these kinds of things that b i a is best suited to address rather than us rewriting a statute or a presidential case i have a two part answer hearing the immigration judge found she had enough hardship which has to be extreme hardship as the trip wasn't but the trial attorney who's going to go on appeal to challenge you know whether the start time is now it could be that there was a favorable exercised of discretion to let this lady who was going to suffer extreme hardship accrue the extra time and a different person working at t h s who did the trial who's very enthusiastic like me and likes to decided to appeal when he when the person was granted cancelation removal so i think that there definitely is discretion involved in whether to pursue filing the n c a a in court and the second part is that since there's a longstanding doctrine of let it be in the alien friendly reading of statutes this statue particularly is written for because every herships somebody says oh who everybody has a hardship when their father or mother is deported or their spouse is deported to get to exceptional extremely unusual those are the cases that you see all the time which you have to dismiss because you don't have to discretion is usually jurisdiction to consider you know discretionary decisions so since this was written to help the most unfortunate hard luck he says i think you have to reject the reading of the statue and i give you examples in my brief that the board itself has a history of alien friendly reading of statutes and what the what the board has done here is instead of giving the alien the benefit of the doubt they've turned on their head and like alice through the looking glass they change the benefit of the doubt to the doubt that an alien should have benefit i just want to look at my notes to see if i also want to mention that there's another statutory construction rule about serp that there should be a surplus surplus is in the words of the statute that every word has meaning congress could have written a statute that said when an alien is served with a notice some truth to thirty nine b then the stop time but they said when an alien is served with a notice to appea under two thirty nine be extended why is this a plus as i mean it seems like a good idea to you here's the question it's a good idea to lay out what the notice to appear should contain that's fair but it doesn't answer the question of whether the notice even an incomplete notice stops the ten year clock so minute i don't know why that creates a passage it creates a plus age because you can't appear someone somewhere if you don't know the date and time to appear but i mean there the point is there might be a practical reason for not having the original notice and you're going to get the notice the point is whether it's in the one the initial document or a follow up document because maybe they couldn't schedule it there there's a blank you there's no practical difficulty in scheduling a hearing the only question is what do you as your hearing going to be now do you have here is if they give you a notice to appear the same day the d h s s agent who gives in the notice to appear the same day stopped for a traffic stop he doesn't have the docket in front of him well not a question of even a queue it's just practically i think i think that there are ways to finesse that with telephones in computers at top of that you know even when they want to happen is they just put sixty days out just every time the put sixty days out and then they'll send you an amended notice we've moved it to ninety days out i mean that's what's happened here there's no way they can give you the actual notice that at that time i don't see it i'll take the sixty days i've been to the right way let's have an alien friendly reading of the statue out for you time's up you have two minutes for rebuttal thank you pointed out earlier served notice to appear under two thirty nine and i can be interpreted in different ways it doesn't actually speak to whether if there is something that's missing there must be a limit to this argument do you think i mean i can imagine  world in which camera of fits within chevron and they get deference about saying well when it doesn't the notice doesn't identify the date and time of hearing that still counts as notice for purposes of your clock but what happens when you know the notice starts to not have a lot of other things how do we deal with that it's just do you think this camera rule only applies to your to include the date and time of hearing and place of hearing or do you think it actually covers you know half of the things that are supposed to be in the notice can half of the be missing and it still counts for purposes of stopping the clock well i don't know if half of them can be missing i do well how do we deal with this problem is mean one simple answer is to say well now the notice really normally should include everything to count for stopping the clock but date time hearing will forgive or i am trying to figure out how to think about that interest and your honor the  the important thing to look at here is whether the alien has enough information in that notice to appear to understand that the government has the belief that he is in the country illegally and is going to be seeking his removal from the country now in this case the courts the courts looking at a situation in which the notice to appear didn't include the d in time of the hearing and while it did include the factual allegations and the proposed charge of remove ability it was later determined that that was in that wasn't sustainable in that situation when d h has served the petitioner with his notice to appear he he had the information that he needed in order to discern that the government was seeking his removal from the united states the reason stated were seeking his removal with and correct which the government thought that he had some legal basis for being in the united states at this time and in the end that didn't come to fruition the charge that was provided in the notice to appear again did exactly what it should have he went to his immigration court hearing his immigration court hearing he through his attorney he brought up the fact that he didn't think that that charge was correct and there was a discussion that went on about that in the end the the flexible approach to immigration proceedings which is something we mentioned in our brief it shows that this is this notice to appear did provide mr gonzalez with what congress wanted him to know in order to stop his a cruel of physical presence in the united states in the in the regulations it gives  the government the ability to provide additional or substitute charges of or movability the legislative history shows that the government rejected the notion that all of the charges needed to be brought at at once the similar to simply having an indictment and then having a superseding indictment i would say i would say yes your honor hurting lee indicted even if it turns out the true later acquitted or the charges are dropped exactly exactly and and that's actually a decent comparison in that someone who is served notice to appear and ultimately be time still get stopped let's imagine a case where a person has five years of residence he's served with a notice of a to appear completely legitimate time is clearly stop he beats that charge after a year then he gets four more years of continuous residence does that stop time still get stopped that is simply because you were acquitted you didn't get you still got the notice of appearance and time was stopped is there any law on that in the  hypothetical would be that it's a different it's a different charge i mean and it's completely legitimate just the question was the time stop was the time and stopped because he was acquitted or dismissed and if you don't know the answer that's fine i just thought maybe quickly i do i don't actually know in the state it may not be because what one way of looking at it and query is that camera radio and the theory here is when the notice to appear you know you're in trouble you know you're before the court we don't want the time to keep accruing i mean that's the simple minded view on the one side the other side is the alien friendly reading that ms lewis argues for and seems like camera rio has come down on one side of that for better or worse that's in fact true as well tell us why it's entitled to chevron deference because maybe that's the answer here  doesn't matter what we think the best reading is until we get over the chevron point that's true so under chevron since there is an ambiguity in the statute it doesn't actually get to the the the the situation where the m missing certain information and the board did reasonably interpret the statute in this case it began with the terms of the statute it explains that the statute read served and n under to section two thirty nine a now all of section two thirty nine a that and that includes info that includes requirements other than what is actually supposed to be included in the  if it includes information about a change in the hearing date it also i wonder why don't you have a problem a step want to mean it it does say you know it served a notice to appear and then it tells you under section you know twelve twenty nine a so it's you know someone reading this has no idea what that means you know it's we know it's not just a piece of paper you're it stops if you're served with a x something and then later on th they tell us what something is it's not just a piece of paper it's a piece of paper with four corners and these eight provisions or whatever the actual number is and if it has all of those then it is quote a notice to appear so i mean why  on chevron problem because you're just explaining what one explanation what one interpretation of the statute could be you are you are in fact correct as the as the board pointed out that the explanation that you've just provided is a plausible one however the the board said that the better interpretation recognize that the reference to two thirty nine as i simply pointed out that that was the document that needed to be but what's  hanged to me is that in this is why i asked the initial question is you seem to be conceding i assume the board would concede that just serving a piece of paper would not work it has to be something that is quote notice to appear as defined in this section and so and i i'm going to guess because if you're going to be reasonable it has to include most of those things so it's just it's funny i'm just trying to figure out linguistically it's very funny to start down the road of no it's not just a piece of paper it's not just anything it's this thing oh by the way this thing has to include most everything but not everything i'm just trying to figure out  doesn't help me to say that's a reasonable to petition my real question is that the only reasonable interpretation that's what i'm trying to figure out the injured i just said yeah i mean it's so it's not the the only reasonable interpretation of the statute naturally two circuit courts of appeals have actually also concluded that the the i mean i read judge wood's opinion in that that's a great opinion and it may well be right but i'm still trying to figure this she does not answer the question i'm asking which is it says it doesn't just say a piece of paper it says this legal phrase which it chooses to not leave there it could have left it there in which case you would easily when you surely have chevron deference it says no this legal phrase under here and the under here has whatever it is what is it eight nine how many things in it there are several several requirements that ok so we know it's because you're going to agree some of them have to be there the board can't possibly have deference to else it says that you are hereby notified that you're in various trouble and that it has blanks for the date and for the particular charge which is filled out just happens to be amended later that right that's that's right your i was some talk about whether it didn't that lives notice to appear does it not i don't know exactly what that it does to my earlier questions to counsel as side show my understanding of the practical reasons why the time and day to appear wouldn't be there so i totally get that  be stacked up language a statute if we say this is a world in which you don't need to meet everything can put some of these things they don't put everything on is a kind of funny that the word is notice to appear and the one thing you're saying you don't need is the absolute necessity to ever appear it does why her birthday party point is a nice point i mean it's a notice to appear at her birthday party which is what she indicated but you know how to appear anywhere if you don't get time and that's the same saying if you agree we're in a world where you don't have to have everything filled out i'm now starting to ask you despite how silly it would be as a matter of implementation of the law but the word is notice to appear and that's the one thing you can do with this kind of notice so it's like the first thing you have to have is date and time well they are telling him that he needs to appear for a hearing it and he will later be informed of the date and time of it just like in ms list is example she informed her potential party goers that they will be able to appear for a party  that's that's what this that's what this notice is it in this case my concern was with your earlier example it sounded almost as if you were saying the notice to appear can be a placeholder because the judge bogs positive five years into the ten years and frivolous charge in your answer was well when they found out what the real charge was later then was it a real charge well if that's the argument been any piece of paper put down become simply a placeholder to give the government the opportunity at whatever time desired to come back and seek a out a real reason surely a notice to appear cannot  do that that can be your argument that is i apologize if there is any confusion that was not in fact my argument what i was just trying to find what the contours of judge judge bogs is argument are what his question trumped up charge a shoe or on in correct charge of which you are positively and absolutely clear which is judge barnes is a very good question then what happens you are completely cleared in the fifth year being disarmed in this case at the time that the individual received a notice to appear he was in fact removable the government was correct in believing that he was remova not not it ended up not being true that he was removable on the particular charge that was issued but at that time he was in fact removable from the united states and so there was main though that would mean though if i charge you incorrectly in the fifth year and in the twelfth year i figure out you were in fact removable under your argument that's good enough they can always put a place holder and as long as they can figure out a correct apologize if i've created any sort of can confusion here i'm i'm pointing out that the there you don't just the government is not using the n c a a as a placeholder as just a way to stop a clock and then come back ten years later the government is using the n c a a to based on the information that it has available at that time come forward and say to the alien we believe that you are in the united states illegally and if during the course of the proceedings even if those are on remanded proceedings from the circuit courts as we pointed out in our our brief the facts still remains that at that time the government indicated that i have two brief points one is a thought about the last statement the judge sent said to me what if what if he has just put sixty days into noses appear and then subsequently you know haven't changed so i just want to say that once somebody gets a notice of appearance you know they are in an immigration limbo and and you know there are some people that call the eight hundred number every day to see if they're empty has been filed in court yet because they want to apply for keep in mind that we don't know what arguments were presented to those courts i don't know if all the statutory arguments were present and in my brief i invited the government to tell me whether the case is in the ninth circuit  independently i've given many many layers argument really independent let me ask about you started out by saying about well when it was filed in court but is that either automatic or relevant suppose the d s s agent as judge sutton's has put sixty days from now does he have to file it in court to make it effective because he's not going to do that for two days five days ten days is if he's out and if he's out in el paso that doesn't make it effective but if if they put a court date on it then they would presumably have to give it to the court but eventually it's essential and it's a scheduling matter that's what we talked about before ok i just wanted to make sure it wasn't a legal requirement that it has to be in court before the alien get