good morning may it please the court when he was attorney thomas and the law appearing on behalf of the petitioner in this matter i'd like to reserve two minutes for rebuttal time i would like to begin by addressing the intervening supreme court case perera v sessions and  even if the petitioner somehow got notice and somehow appears yes even then and the fact remains that it's not entirely clear what would trigger the stop time rule the issue here is when did his physical presence get cut and right now obviously he has a ten years he has a qualifying relative he's eligible for forty to be cancellation the issue is when it was his continually ask you this how did he know to appear at the at the hearing if when those two appear did not have a place and time he subsequently received a hearing notice it was separate from the notice to appear all right and now i'm just trying to understand your argument and your argument is because the notice to appear was deficient based on the time for cancellation and removal that he would would allow for his eligibility is extended until he actually gets a notice to appear it continues to run until when is not entirely clear right now we would request a rematch and so that issue of when the continuous physical presence that gets cut when that actually occurred that's the reason would be focusing on so to talk to me about what procedural steps and just to better understand if this is this is possible or how this would play out what procedural steps would your client need to take at this point so if if the matter is reminded under pereira what we would do is we would go before the immigration judge and assert that he is now eligible for forty to be cancellation because he's been here for more than ten years at this point my specific argument would be at that time or the statute a statute that's in the regulations for the stop time rule it's the service of a notice to appear he was never properly served with a notice to appear pursuant to pereira b sessions so his continues to school presence up until today continues to run if the immigration judge wants a brief as to whether the concession of service at the preliminary hearing cut is time we can do that it's my position that that did not cut its time but that's that's an issue that i think should be addressed on  is your position that the second notice you got which as i understand it contained the date time and place where he was both appear but that's not a notice to appear now because he didn't contain the charges and just a pure has to contain the charges of removal and date referenced for some one reference one of our circuit panels has done this in a in a memorandum disposition remanding it back is that correct yes i i searched that there's a few cases the ninth circuit has reminded based on prayer of up until this point and who are similarly situated to your client yes it's for forty to be cancellation there's the other issue obviously of whether the whole proceeding should be terminated based on prayer that's not what i'm serving at this point right now it's just so he can get an opportunity to apply for cancellations something he was not afforded in the previous proceedings did the b s a at their hearing did they did they look at this issue at all was no because there is their decision was issued prior to pereira so for you to be  wasn't a relevant issue at that time i see now obviously they would and is there a second circuit case that has that was referred to as well actually yes your honor there is a second circuit case there's a few cases that have been a little messy sometimes you want to look both suppose that one reason or the other the support you might be we don't agree with you don't have any other points you wish to make sure just briefly obviously the big issue initially was the withholding and kept application of the petitioner filed credibility there was an adverse credibility determination in his proceedings it was my argument that a relevant factor that was ignored by the immigration judge in the b i a was the manner in which prior counsel prepared the case as case law states the totality of the circumstances analysis credibility and the matter which is on the record is clear from the record that he most of the reasons why she found him to credibility and they did not take that into consideration so i mean if i understand this in your brief you argue that the erred in upholding mr shaw holds adverse credibility determinations because  failure accounts for inconsistency between mr schott holmes declaration and his testimony or mr shaw holmes inability to give specific answers to many of the i j's questions which the also relied on so i'm just trying to figure out how can we say that the adverse credibility determination was not supported by substantial evidence here when not all of the evidence that the be irish relied on was riveted to mr cho holmes counsel i understand your honor i think there was a few things actually cooperation was one of them  failure to update the application and declaration was a big issue and that fell squarely on prior counsel he even admitted on record that he was the one that failed to update the declaration information and he had no excuse for that he admitted that on record and that was something that just wasn't considered in the credibility determination it was counsel admitted on record that he didn't update the information and prepare the information as it should have been that should have been something that at least was discussed in the decisions and it wasn't but that only accounts for small seems like a slice of what the basis was for the adverse credit but i disagree on i think the main problem immigration judge had was the difference between his testimony on the day of individual and the information in the application that was previously filed a there was a lot of information he testified to that wasn't included in the initial application declaration and again that fell on the attorney not now petition i only have ten seconds left anyone has any other questions i october and seven days later the subsequent notice of the hearing was sent to petitioner which specified a specific date in place for the for the hearing and that's the hearing that the petitioner complied with showed up and was in the hearing so there's really no issue of whether all the issues that were raised in prayer or about the notice in the specificity under the statute aren't really at issue here because what it does do you agree that the notice to understand that you're arguing that well that eventually there was a hearing and i mean it was a whole hearing and a determination made and and that's what we have to try to determine it looks like a few other courts the second circuit and our own have remained in these cases without determining whether or not the stop time rule was triggered in light of the petition or insufficient notice to up here and have and have not you know made room they just simply have remanded and i'm trying to figure out why should we do the same at this point in time are we would argue that the subsequent notice of hearing that was sent less than a week and the notice to appear is adequate to remedy the and what is your best authority for that because it didn't contain the charges in your own regs i think dictate and require that the notice to appear it's to be valid should have the charges and the date and the time in all of these things that you normally argue are what are required and that you complied with you're right your honor and i i think our argument is as soon as he received personal service of that notice of hearing which specified a place in time for his hearing that was enough to fulfill prayer is requirements so the october sixteenth notice of hearing i think i referenced that and my twenty eight j response states that please take notice of the above caption case has been scheduled for a master hearing before an immigration judge on feb sixteenth say hearing to be set tight data because it referred to them and say your hearing will take place on the charges which we have previously sent you on october the eighth and words to th i don't believe it does your honor so it seems like the supreme court has made a determination regarding when the stop time rule because it's true i mean  seems like it's tied to the ten year required man that it's required for a continued residency doesn't it that that's correct you are that the court can conclude that the stop time rule is controlled by the statute and by the statute meaning by your record and that the end date for the cancellation for someone would be to determine how long they've been continuously in this country of whether or not they've been  continuously in this country for ten years the end date that they have to work back from the supreme court at least my understanding pereira is from the date that they get a valid notice to appear that has a date and time they're hearing and that's going to trigger trigger the the end stop time is that not correct that's correct but our argument stands that the the subsequent notice fulfilled that requirement and then you have the two documents that have the the charges that he was charged with and the time and date of hearing this is for like let me ask you something else in your twenty a j letter of august sixth you make the argument that the petitioner did not actually file an application for prayer was subsequent to this hearing hasn't this issue been addressed by other circuits also and haven't they been remanded in these cases back to the beach for further proceedings i don't believe they were in this specific circumstance where you had somebody same situation if if the court would like us to supplement the operation here is about the statement you just made right now when you said that that was different the other circuits are different i think the only other circuit at least that i'm aware of right now is the second circuit and for you to make a broad statement like that and not know exactly what it what that statement supports and whether it's supported are not i'm curious why you would make that i would ask that we be able to the problem with that case the problem with that argument is that that issue was never been brought forth to the agency that there was ever any problems with the the former counsel's performance during the case if this would have been brought in a motion to reopen which is normally the process for this to be raised before the board the board could have looked at these issues and this would have been a very factual determination it would have included a lot of determination as to whether or not the petitioner had gone through all the steps to make it  prohibited well they're not they're not prohibited from considering a motion to reopen by any means but they could consider they would certainly have to consider the timing this factor in the motion reopen that it is untimely that would have been that would be one issue they have to to consider which i soon was it would be untimely that's the position the government would take but they could certainly they could certainly argue that there than intervene circumstances and changes in circumstances that would have allowed the that would allow  the the petition to reopen the case if there was something that they could and indeed reopen it and i would just make one one quick point that even even aside from the ineffective assistance of counsel claim that he makes that the adverse credibility determination was inappropriate and that the rejection of property evidence was inappropriate i would also argue that even if all that was not case he still never made it a nexus to have protected ground this case and that has nothing to do with particular social group was not adequate there was not a nexus to that particular social group none of his family members had ever been threatened or harmed by anybody in the gang members or anybody in that community so there's no evidence in the country on two separate occasions during his individual hearing that he received death threats from gang members because of his family that were police officers and he did provide corroborating evidence in the form of those two documents showing his two family members that are police officers the immigration immigration judge decision that government acquiescence wasn't stablished she thought it was an adverse credibility determination and denied everything based on that the fact is that he did present a proper protected ground