next case on the calendar is the session good morning your honors may please the court alyssa williams for the appellant petitioner your honors there is one issue before us here today an issue of first impression before the court and that is whether physical presence for cancellation of removal is calculated from the date of issuance of a second notice to appear which has created new immigration removal proceedings we know from the board's case law the statutory language in legislative history that indeed physical presence is calculated from the notice to appear that created the current proceedings the case law that's relevant are to board cases the first matter of mendo by the board in two thousand and then matter of cisneros was which was issued by the board four years later and added to or clarified a matter mendoza a matter mendoza the board discusses the law that was put into place in  hundred six which is where the stop time provision was added and in mendoza the board clarifies if there is an issue and seven notice to appear or what was previously referred to as an order to show cause that terminates there accrual of physical presence on the date that the notice to appear was issued matter of cisneros four years later goes on to add to that and expand to that and clarify well what do we do if there is more than one notice to appear it's in the government's discretion to either act on an original removal order and an original notice to appear or to decide to issue a new notice to appear and create a new set of remo proceedings for the government disagrees with that doesn't mean the government says that they were not in titles i understand it to reinstate the earlier proceedings because they can reinstate only when an alien has  reentered illegally after having been removed or having departed voluntarily under an order so if they didn't have the discretion to reinstate why should we not treat this is a  continued kind of single related proceeding it's a very important point your honor because this word reinstatement can be used in a variety of ways so there is a special regulatory provision which allows after someone has reentered the country for the government to invoke the reinstatement provisions and reinstate the original order that's not the case here because mr event a near a never left so what happens here is once the petitioner comes into immigrations custody immigration authorities can decide to go forward with the original removal order reinstatement isn't really the word they can just effect the original removal order they have a removal order they have the person in custody he should be removed it happens routinely instead in this case they decided for various factual reasons to instead put aside that removal order and issue a brand new notice to appear and create brand new removal proceedings so i'm having trouble thinking of how that your interpretation would would work it seems to me that if if your right then there is every incentive upon receiving a notice to appear not to appear to to perhaps an order of removal in abstention but maybe you can wait it out and then if you're right then it's in the government sensitive instead of issuing a new notice notice to appear just to go find you and grab you off the street so if we're worried about putting people into the shadows it seems the scheme that you're proposing would have the effect of people that of people not showing up at their proceedings and then being afraid of being arrested at any moment as they attempt to run out the clock so what am i misunderstand no i think you are misunderstand your honor because the government's position if the government did not issue new proceedings the government just acted on the old order people would never have the incentive to come forward in some sense the government here is given giving mr event a new year another opportunity that they don't necessarily need to do it it's not as if in this case the petitioner did not wait ten years and then seek to reopen proceedings because he now had the ten years that wouldn't have worked the only way he qualifies is because the government of its own initiative decided to institute new perceive things perhaps livingston's hypothetical the only reason he was in the position he was is because of the commission of an overcomer absolutely but the board case law specifically tells us that if the government issues a new notice to appear we have to calculate physical presence from that date if i can quote from the matter of cisneros case i think it's the most relevant and most of enlightening decision to the facts that we have here the board in its holding a very broad holding says that the stop time rule was not intended to extend to charging documents issued in earlier proceedings if only pertains to check to charging documents served in the proceeding in which the alien applies but in any more clear and we  started with this the government had the option of proceeding by reinstating the earlier removal order so there by proceeding with the new in today you might make the empress of the government is saying we want cancellation of removal to be considered as a possibility here you're saying that the only option and i'm just trying to make sure i understand how this process works what should the government if the government wish to remove your client to proceed  at this point what should they have done instead of issuing new in today proceeded with the removal of your honor that's what happens every day as arresting him he was already arrested and in their custody and they but let's assume for the moment that he had not been a as a hypothetical but let's assume that he is that he's walking you know that he's living in new york how would they should they proceed as they would in any other case your honor that at however the government uses its databases it has an extensive network ice is out there every day they find the people that they believe are priorities for deportation and they effectuate the removal but here year this the situation was complicated wasn't because the first see most people this is a seventeen year old who is a seventeen year old boy at the first time he came in the one nine hundred gave a different name at the border that is happening routinely every day does not prevent the government from deporting anyone they just go ahead and add an a k a an alias that mr revenge in the era never left in reenter the united states that that somehow makes a difference that the case law is is it's very clear that the issue is not who has left and reentered but how many notice to appears do we have how many sets of removal proceedings so the leaving in the re entering is really not the operative factual issue but it's whether or not there is just one proceeding or multiple removal proceedings removal application because an able to demonstrate the requisite ten years of physical presence he is an eligible for relief he can demonstrate it depending upon what the relevant proceeding is if it's the one that is the latest last paragraph of their opinion i believe they discussed the reentry aspect that they were reentry and the board did have some dissent in that case because as judge harmon indicated  legally well that is what the board found and the reason why the board found this is because it has the decision basically hidden the fact that if you comply with the removal order because the agency the department homeland security puts in a lot of resources on identifying an alien where was and whatever year the he was arrested in committed the crime they knew his name and they knew they knew what his situation was they knew they had an order in effect that  two thousand and fifteen when they handed him they wanted to make sure that they had the correct person they wanted to resolve any question as to identity because again he didn't just give a fake name he gave a fake date of birth and country of citizenship and so rather than said subject as an enforcement priority he has already been ordered removed from the united states by immigration judge in atlanta but since subject light immigration officers about his sheer identity name date of birth country of birth country of citizenship which resulted in judge discretion the agency had a choice to make starting new proceedings or acting on the old yes what would executing the removal order have meant that they would have a rest if you had been in custody that they would have just arrested him at that point  that mean that would mean that once they apprehend him that they would arrest him and then they would have to go back to the immigration court in atlanta and ask that they keep that they've modified the n the country or judge korman i apologize there are two different processes that you could have engaged in here actually just one but there are chewed out balls in the air basically there's reinstatement which responds counsel indicated that you should have done which is impossible because he did not leave and then there's executing the prior order which th us could have done but they didn't because he gave a false name country of citizenship and so rather than be opening  fifteen the ten year starts back from the proceeding in which which is actually brought that is the new one of the show cores so you have a prior decision of the board of immigration appeals congress drafted the stop time will to close the loophole to prevent aliens from dragging out their deportation and somehow eventually being but eligible to get the benefit of society insistent with you know you start the original proceeding and their efforts made to drag it out right it's also considered doesn't necessarily rule out the fact that when you break when you've chosen to bring a new one that that congressional intent for whatever it's worth i mean in terms of the source  they're now being violated and there's a language which suggests that they were concerned with the proceeding that was brought being an alien having the incentive to stretch it out this and and instead you were the ones who drag this out by choosing to bring another proceeding and you have very a decision and says and there are those which says that the only thing that counts is if he is the is the is that ten years back from the proceeding that we're in right now then why should we bend over backwards to case it's particulars for a moment what sorts of factors influence the determination of whether in a case where you could execute an outstanding order what sorts of factors may influence the government  ok and it's your position in this case that the reason was that there would be some question of identity because he'd given false name and false particulars before but why would that make you go under a new and today as opposed to proceeding under the first under the under the outstanding order why is it preferable to do and if there's a question about identity i do not know that is the agency's discretion