case be recal and heard based on the current briefing because i think there subset of the issues there still need to be addressed and counsel would have the same opportunity if it's decided variously to him  argument if we decide that the snellen berger is going to control or is a major factor in our decision then we would give you opportunity to provide supplemental briefings and we would deal with that in that way  again please you have so little not that that wasn't interested ok we'll secure a very good place if you will he want to reserve any time yes i'll be reserving two minutes and my name is james todd bennett four issues are in front of the case the court today first is that jurisdictional and all for acquirers aspect of what took place at the outset of this administrative law proceeding secondly is convention against torture and now as to the jurisdictional issue there's two wings to this particular problem first there's the issue of whether the notice to appear meets mandatory statutory requirements the second one is whether the immigration judge at this point in history after the illegal immigration reform and immigration responsibility act of one thousand nine hundred six under the code that's then affect statutory construction can jump off the bench like an old  all refer to it in its acronym for convenience under ira they spell out specifically the statutory authority of the judge the judge does not have the authority to amend that's reserved in the regulations to what's now the department of homeland security what was then the immigration and naturalization service service the service and using the phrase from the regulation can bring an amendment at any time to the complaint to the two men the men the  charge the problem in this case first of all under the statutory limitations that are placed on immigration judge now spelled out for the first time under ira she can't do that she's got a specific well will select to paraphrase will select and one and to make things complete and throughout the proceeding after that point it's used in the conjunctive we got two charges attached to one main charge so you got two of twenty one flavors of aggravated felonies attached to the two thirty seven aggravated felony charge is it your position your client simply didn't have notice of the charge yes and i think the the problem in this case and a problem with this is we're not talking about an article three or a state criminal court we're talking about an administrative body and they can only do what congress tells them they can do and they clearly are not authorized the immigration judge clearly not authorized to make the prepare and respond understood the problem and it sounds like nit picking but the problem is at the outset the statute requires that a specific charge be what but that kind of does sound like the picking and that's kind of my point  there any prejudice or the petitioner certainly had notice of the charge and had noticed preparing for the charge i think it's a strict pleading requirement understand there is a continuance is allowed to respond to it after the immigration judge improperly amends the notice to appear i think it's a strictly strict and under a party would be a due process violation since it doesn't have to show prejudice so it's your position that   the notice to appear to contain a typo would that be fatally defective i'm sorry wondered if the notice to appear contained a typo in the designation of the state statute the i and a statute involved with that be fatally defective ascribe enters error probably could be amended in or delineated as long as there was a sufficient charge but i thought you said the statute doesn't amendments it does after it's filed it's filed the problem is that the get go it's got to have a charge understand that while there's there was a charge here and there is it where we were talking about is a subsection of the same statute right now it's a statute charging your deportable is an aggravated felony and then there is reference in the definitional sections of the i on a at that point in history to aggravated felonies or twenty one different aggravated felonies combing through them potentially there's four maybe more aggravated felonies that quick have been if he's going to go in and mount a defense you need to know what the charges and i think that's why congress i would submit that's up watchable requirement at the outset so he knows what the charges are facing against him in removal proceedings but as the judge larsen mentioned in this particular case your client i don't know whether the record is clear client of directed to the amendment or not but whether that happened or not the fact is the immigration judge gave your client two weeks to prepare based upon the additional information do you think that was an insufficient time or you're just saying that no matter what if there's a there's a mis statement as to in this case you've got a primary section you're saying that by failing to me name the subsection under which this the notice start all over again exactly you think that's what congress had in mind i think the congress in enacting the statute we have to assume they knew what they were doing and the literal language of the statute if it's an ambiguous really clear we have to accept it under the standards of precedent by the supreme court so it's explicit language it's mandatory it shall you shall provide this kind of notice well again in this case and i don't mean it over labor this but i think this is an important point in this case that the section they cited was correct the question is whether they had to cite the subsection i mean if the the actual charge was included within what they cited they didn't cite an incorrect section for example  didn't if we were talking about a crime of robbery versus a crime of a molestation of a child they didn't cite him for car robbery instead of molestation of a child that would be very clear but in this case they cited the section it's just not the isn't it nonsensical to believe that congress intended this to be so so strict that the due process becomes the form and not substance congress made the requirement the agency has to comply with the statute i just do not think there's any way around a mandatory requirement under statute for an administrative agency or the statutory words what  statute say has to be in the specific language statute front of me your honor but the specific language of the statute shall provide thanks shall provide under d d s the controlling section we're talking about the charges against the alien and the statutory provisions alleged to have been violated and that's in reference to the mandatory requirements under subsection subsection one so that would be one d that's the language that would be controlling here well it doesn't really say it doesn't really say what level of specificity the notice has to contain i think i mean it if the section is named but not the subsection i don't hear anything in the statute about whether the  section has to be named or the subsection has to be named it's just notice of the charge well then you're relying on a state statute in order to define what the aggravated felony is and that dovetails into the substantive issue of the motion to terminate or getting into an area where you're defining by incorporating the factual allegation under the charge i think it's factual allegation for the notice to appear into your charge removal and there are two different animals the  yeah if it's contested whether that's an aggravated felony or not it leaves the entire issue unclear as to what he's being charged with very good if you will hold the relevant quote give you two minutes on rebuttal one no we get back and it my problem is i did want to raise two issues on the withholding claim you'll have two minutes in your brief is excellent so we'll be able to rely on that yeah i just remember that the twenty eight a letter is not a supplemental brief it's a twenty eight year letter ok well you're from the government good morning and may it please the court my name is jeffrey bernstein and i represent the attorney general of the united states i suppose i'll start with the  matter which has been under discussion for the last few minutes and essentially the statute is does not require what the petitioner would have it you believe it requires it's simply just a notice statute it does require you know that the alien be provided with notice of the charges so obviously you can have an opportunity to defend it's not analogous to an information or an  that i mean i've never practiced criminal law so i'm not so sure that i understand the question but it is a notice i mean in the sense that an indictment or an information is supposed to provide notice obviously it's a criminal matter so you've got stronger constitutional protections than in the civil matter but obviously that the notice is supposed to provide noticed in order sufficient to enable the alien to defend himself in the proceedings the entire notice to appear is the notice which satisfies this provision and i think my posing counsel said that there was just sections of the notice of appear but it's the entire nose of to appear and this notice to appear again advised that among other things that he had committed even committed of the grand theft crime and that that grand theft commission of that conviction of that grand theft crime  in a different way your honor i mean amendments has been vandy about by the immigration judge and by the parties so i don't know what amendment means i know that the statute in the regulations say that no new charges can be bro without written notice at the hearing essentially opposite the hearing by the by the government and this wasn't a new charge this was simply a further not a further explanation but a more definite i would agree i we can see that you're on it because i think given the again at the mention of the description of the crime the aggravated felony section it is quite easy to go to that section to determine what you're being charged with really specific bending over backwards to make it as clear as possible and as the court has pointed out giving him several weeks to consider the morris but the more definite statement given all of these matters it's clear that the statute isn't violated he was given the notice he was entitled to he was given full notice and more than sufficient opportunity to prepare and he in fact  the immigration judge said you know and i'm here paraphrasing these these kinds of things happen all the time immigration judges have always made more definite statements made sure that the alien is fully aware of the charges against them and i'm going to do it here what was he correct in his statement that it happens all the time i don't practice in that form i have to you know honor the immigration judge for being clarity with respect to what's what you're the rule of law in terms of the ability of an immigration judge to in some way and i don't want to use the term as a term of art to men and this type of  notice and if so under what circumstances and what degree of specificity is required i don't know that that is sorely needed your honor i'm not saying that there is i mean obviously there is there is no case law on the matter and if but if the i j a who used to have stipulated is honest was correct then by definition a lot of people lot of i g s are doing this so if they're doing it incorrectly they need to know if they're doing it correctly they need to have some some law that provides that they are doing correct yes your honor and obviously the government's admits that they are doing it correctly because there is no provision of the statute of the regulations which precludes making a more definite statement with the with statute that more specificity is required and i'm not suggesting that i'm convinced that what happened here was improper but i am troubled by the notion that what it's the starting here was sufficient well i think you really do have to take it on a case by case basis i'm sure that there are circumstances where notice would not be sufficient and this fact pattern may be on the edge i don't know i statute even if the notice did violate the statute which which we don't believe it did but even if it did that obviously would give rise to a due process argument and violation potential violation and the court  held and has the board noted and decided prejudice is required and as the court has observed he was given plenty of notice of what he was faced with and plenty of time to respond to those charges and suffered  withholding of removal claim we believe that that is supported by substantial evidence and there is no evidence compelling a contrary result this individual alleged that he feared being  under this court's case law by the government or nancy or individuals of the government cannot or would not control and as the board noted filipino police did take a report from the petitioners wife and said well that this individual is not and doesn't appear to be in the country at this point so there's no threat so we don't need to do anything now but if you return to the philippines come tell us or we'll find out  and and we'll do an investigation and again that's a paraphrase i don't know the extent to which i know i only have twenty four seconds left i don't know the extent to which you'd like to talk about the agra fairly mated felony shellenberger issue i think in  very good thank you your own a k bennett you want to use your remaining two minutes or a minute fifty seconds to give me in two minutes ok thank you very much in response to the issue of jurisdiction the immigration services regulation says that all missions of legal requirements are don't create substantive and procedural rights and alien however they do not include the mandatory requirement that would be under the regulations cited in the brief secondly the immigration judge does the amending here and that i don't want to have lost sight of the fact this is not the service doing the amending this is the immigration judges service after it's amend after the judge does her or her amendment and says ok that's fine so turning to the withholding issue it's a credibility issue goes to substantial evidence is the standard my first the first problem with this decision is that the judge gets the facts wrong she assumes that was our rose investigated second and i got first the interviews in the record show that the that that lazaro was interviewed first and then not be die now even if we accept your version point protected ground under the refugee act it did do you have the towns like he may be in danger from somebody that was involved in crime here but it doesn't if you did political opinion in so far as based on the testimony he family is a very powerful family in the philippines for mr nabil god political opinion as i'm opposed to you i'm going to go ahead and you know talk to the government about the united states california the state of california government you know but the question is why are they opposed to him they're not opposed to him because he's a democrat or republican or a communist or anything else there and they're mad because he no specific muted relationship but also social group i believe social group also fits the criteria here just briefly if i could touch on three last issues i'll actually know we appreciate your your presentation this morning we  will let you know once we conference whether we're going to defer until schellenberg has been decided and will ask for any additional information that we need we appreciate your briefs the case