issue that's present at the forefront and mr nish will also be handling reporter for us as well over movable is void for the reasoning as follows jurisdiction the only bust with the immigration court whenever a charging document is filed by the department of homeland security with the immigration court a charging document is then defined in the regulations as being and in ca among two other documents and here is where it gets a little tricky as is the next step is what regulation in order for you to win here today you have to win on three different arguments really st you must win on that there's a defect in the notice to appear nd you have to win on the defect can't be cured through the two step process rd you have to win on the defect is not a non wave of will jurisdictional that is if instead claims processing you would have to w on all three of those in order to win today is that right general good news argue my whole case for me here today i didn't tell you what when i just said those you have to you agree that you have the burden you have to win on off three of those yes your honor that's correct have followed other circuits in that case and said that a notice of a notice to appear for statutory notice purposes can be later cured when the immigration court itself been sins and serves on the alien at the time in place of the removal proceedings and that is what the government is arguing here the day before we get to cure we have to find there's a defect and five of our sister circuit and the b i disagree with all of the circuits and also our suggestion in the footnote in that case gerard respectfully i believe it's now two opinions where were you drafted the opinions are in the opinions and they were in footnotes suggesting that p is limited to stop time real contact five of our circuits have held specifically that it is and i think judge rosenthal has also written that it is yes joe right that's correct in the reason that i think that we don't need pereira here prayer apis if we're just looking at the statutory text in the regulations itself suit perera would be ready a signpost you can look to justice kennedy's opinion there in the concurrence and say what do we have there he says promulgated by attorney been attorney general janet reno in one thousand nine hundred and seven shortly thereafter or whatever the statute was and acted you have a that's that's how the process supposed to work it's supposed to be a just running it through in the way that the process currently works is you have a two step that the hearing dates are not a meal easily available for the immigration court so they have done a two step process why isn't that an adequate or your honor i would direct this court's attention to the to the amicus brief submitted by the chairman of the b i a in the prayer sessions case presented to the court there it was a description of why the system fell apart there was once unison between the immigration for the various v h s into t's such that whenever they were serving the alien with the whenever they being th us was serving the alien with a notice to appear big had already worked with the immigration court to have a time and place so it was ringback at one time when is that when they were having them high volumes of the people coming over that we have now today that are documented in the document at high volume i'm not sure your honor i could answer that question but i do know that at least in career of the sessions itself the court recognized that nearly one hundred percent of the time the notice to appears did not have the time and place matter here this is to the rd question the gentleman your client appeared for his hearings he testified this is not a situation where we have someone being removed who said i never knew that i was having a hearing it's not fair to remain me and not give me a chance to have you know withholding of removal or some other context your client wants to at these hearings so what difference does it make  apologize judge all right i believe that the answer your question would be that whenever we have statutes in regulations we need to stick to the plain text of both of them  its plaintext the regulation does yes jurisdiction best in immigration proceedings commence when a charging document is followed with the immigration court by the service who would only be says he had some further guidance some claims processing rules typical if you do not file something by a certain deadline then that is a sort of prudential claim processing rule here you have a process that was clearly contemplated by congress to go through it and whenever we're going to remove someone from this country we respect that they are here on lawfully i think that we should be able to at least tell them been in there in the immigration court should pursuant to the regulations saying they use immigration court what i'm going to address your honor's is why even if it isn't the case that it wasn't sufficient investor stiction that and mr pierre paul is nonetheless entitle to release the legal error that we see in this case really emerged in  two large umbrella contacts one was cancellation of removal contacts and the other being the asylum context i'm going to focus civically on cancellation of removal and in particular  go into judge luis's and the b a s analysis of the procedural safeguards that mr pierre paul was deemed entitle to it's a fundamental premise of this country's constitution that people are judge greenstein the original immigration judge in this case found in judge least didn't disturb that holding in the lease then it's a requirement under the law this is not a discretionary factor it's a requirement that certain procedural safeguards are put into place to protect  to meaningfully participate in his immigration proceedings and therefore was entitled to procedural safeguards no later fell on to judge louise to decipher what you know this procedure safeguards would actually be and she she  did impose several of them one being that he would be represented by counsel one being that counsel would be allowed to ask and leading questions one being that the subject of fear of his return to haiti would would not be disturbed and finally  credibility finding and or a truth finding to mr pierre paul's testimony both at the merits hearing and within his eyesight eighty nine dollars she didn't actually follow through with that credibility analysis and with that truth finding your honor and and in particular i want to focus on the judge louisa's this was a nd guessing i would testified that he had been hospitalized for years because of his mental illness that he had and we had hundreds of pages of medical records on that point and even though judge judge at least didn't actually hold against mr parables finding a mental illness she did say that the statements of dr hannah were troubling and eventually militated against a finding of rehabilitation which you know is a is a core element of cancellation of removal and her reasoning for doing that your hon in direct contradiction with the safeguard that she herself imposed under a matter of an am i mean matter of mam is a i don't want to say it necessarily gives you know untold discussion to immigration judges but there's no limits on on the level of safeguards that you can impose and it's entirely up to the judge based on the initial incompetency and based on this particular circumstance of the case to determine what those safeguards are you know the government in but the footnote to j array that the government relies on is just to footnote about subjective truth and even if we look at truth subjectively here and whether mr parable believed he was telling the truth at the hearing morning your honor may please the court christopher bates for the respondent and i want to start with the jurisdictional issue in this case as you noted every circuit that has considered the question has rejected petitioners argument regulation the attorney general has promulgated states that a charging document includes a notice to appear and then a further regulation specifies what this notice to appear to be filed with the immigration court must include must include information such as the nature of the proceedings the authority for the proceedings the charges against the non citizen but it does not state that you know a superior must specify time and place information we so as i said your honor we believe that there is a gap in the statute that leaves it to the agency to feel like up to determine when jurisdiction vests and that the agency phone to death has used the term jurisdiction so our position you believe that it's not applicable in this context that it's that even if you apply it if you still have satisfied what is the government's position regarding that case so we would say th a that phrase under culture urinate does not appear in the regulations and so we would say th consider imposing but it doesn't actually mention credibility a man does mention appointing twenty council but doesn't mention credibility gerrard by contrast is all about credibility and in fine i just read a couple of quotes from from j given the facts of this case we also find it appropriate to provide guidance regarding credibility assessments in cases involving aliens who are incompetent or who have serious mental health or cognitive issues that may affect their testimony chiefly with respect to asylum and related claims for  relief from removal and even more to the point jr a instructs immigration judges to do exactly what the judge did here again to quote from chair or a the board said where a mental health concern may be affecting the reliability of the his burden of proof based on the objective evidence of record and other relevant issues and that's exactly what the judge did here the judge credited mr pierre post testimony to his belief in his testament but then went on to consider contrary evidence that was in the just believe mr pierre paul on this issue what the judge says and what the judge does is the judge looks at the contrary evidence that was offered that the judge identifies the warrant application which was inconsistent with the testimony that two step process if the regulation sister sticks invest when the government files a notice to appear with the immigration court if the notice doesn't kitchen attain the time and place it can't be a valid charging document and so  the regulation argument but nonetheless i think even if we do take that argument it doesn't hold water and i want to direct the court back to or to santiago de directly contended with that argument there and they held that it was absurd because essentially what's what's happened in this this was kind of brought up at oral argument seven circuit two congress has created a statutory floor for what a notice to appear is and that's and one thousand two hundred and twenty nine they state that you know one of the essential characteristics something that can't ever not be in notice to appear is time and place now when the agency comes in and when they bring in their regulation they basically lower that statutory floor and they say well for this specific purpose which is  reason it doesn't hold water because under the president of this court and you know numerous other courts in this country when when there isn't a conflict between a statue and the regulation that interprets that statute  statutory language has to take hold of it has to hold sway so furthermore i want to go into the question that your honor had about the practical considerations and about you know we have my or says that practical considerations are meritless when we're dealing with the plaintext statute and again the plain text of the statute states that a notice to appear past a had date and time information it doesn't make that contingent on any other requirement and it doesn't cabin that i mean you know understanding that prayer itself is cabined to the stop time context i mean the statute is not cabin by any stretch of the imagination and it simply defines notice to appear as including date and time so in this case your honor we would like the petitioner to be returned and his case remanded for proceedings that are consistent with his right it would entail necessarily receiving a new n t a that has proper date and time proceedings even though here already showed up and hadn't turned and had all his credibility used he had much more process than most people didn't that might be true your honor but what we're getting at here is a denial of fundamental procedural rights and the government holding true to what the law tells them to do the government doesn't get to pick and choose ever vest in the immigration court until a valid charging document here being a notice to appear is filed with the immigration court that procedure that process wasn't nowhere followed by the government in this case and i think that that the crimes that would prevent his return and the discretionary factors that are involved there may present some challenges to that but number of crimes are moral harper tud and violent talk of crimes while the issue of crimes involving moral turpitude was not an of evidence in the original immigration judge determined that that was not a crime involving multiple tud and judge louise the nd immigration judge revisited that close decision and determined may continue your own thank you and determine that it could be a crime involving moral turpitude and that because under the evidence i was presented mr parable couldn't sustain his burden but nor could the government prove their burden that she was just going to rule against him in determine that it was a kind of o