brief the fact fence issue as requested when there was oral argument before the immigration judge the immigration judge gave the ice attorney the opportunity to address the staff's offense fishes and the ice prevailed on the crime of violence issue then what would the board have done with the theft offense issue since i said never done anything or even argued in that  they even have that it way back then they could have at it at some later time if they wanted to pursuant to the regulation right that is correct though is your position that if they have a primary argument about removal and for the reason that argument fails or is we can that even shane's waiver argument apparently just gets forgotten in never to suppress and if the government's arguments it's not really an argument if the government's charging document from from before the two thousand and ten decision it gets considered then mr james waiver argument should be considered right when you move to the merits and yes with regards to the merits  with congress this offense that mr mr shane was convicted of extortion ok has an element of consent to it so it should not be considered a obtained by trickery if if if i am the victim of fraud and i give up my property through fraud i can go into court and i could have that transaction voided cate a clear congressional intent to expand the definition of aggravated felony as applied to theft offenses to bring more convictions within its and that so there is no indication that it has that is consent issue is critical to the definition that you know on the face of the statute and then as a judge reggie pointed out then it becomes a chevron issue where you have an agency who has interpreted it as long as it is reasonable and the government points to the fact that the model penal code this is not a chevron matter this base case involves a pure interpretation of pure a war criminal law the board doesn't get deference with regards to determining whether or not extortion determine whether their interpretation of the immigration statute is reasonable and if it is reasonable to interpret that to include extortion as the tragic point well it's a coerced consent i consent if that's reasonable then you do the comparison and the whether or not this is the type of consent your response to that if if if that's what they are in their brief and i misunderstand it i still say that the board does not point to d h s withdraw the charge did it waive the charge and as it's your honor judge bianco noted they have the right under regulation to lodge it any time which they did and they did not pursue it because their case was so strong up until twenty eight thousand and dimaio that this was a sixteen b crime of violence and it was not until demaio ruled that is unconstitutional that the theft charge then became important for them to rely on and the board reached it following this court's free man order if the court doesn't have any questions for me about the waiver argument that is its interpretation of the meaning of consent that's all within this umbrella ambiguous term theft that the board is interpreted council has admitted several times before th  court and in his brief that he's not challenging the holding and matter of the bar of that extortionate taking constitute that he is challenging the board application of its definition to this federal extortion offense he even implicitly agreed with the outcome in a bar that the california statute that includes extortionate takings there was rightly decided that that was a theft offense but in any event if this court deems that there's a shop or an issue before it as to the matter of the bar a holding that defer to the board's definition because it is reasonable and interpret ing fast as at interpreting extortion where takings are coerced means they are not voluntary and i this is where i would really distinguish between the often fraud as counsel discussed in the murder case because in fraud that is a very different animal  because there is a voluntariness a true willingness at the time that the properties given over when a during a fraud offense the person is believing something that but for the threats or the violence it would not be given over it is as this court described it into it is that razor's edge that is just between robber extortion it's it's sort of it's if for sort of a visual in mind it's somebody you know robbery would be somebody clutching the piece of property to their tast and to their chest and somebody reaching over and taking it from that with them resisting an extortion would just be the sort of unwillingness of i don't want to give this to you and handing it over that is very different than fraud where somebody believes and says oh yes absolutely i like what you're saying and they handed oh that's that's why extortion is not like fraud it's not like the the the line drawn in the matter of  additionally counsel brought up that there is an issue about intent to deprive and i point to as i did in my brief to the koppel a case that specifically states that sion offense it is committed with the specific purpose of inducing another's apart with property so there is there must be an intent to obtain the property from the owner thereby necessarily depriving i mean the supreme court in the scheidler case called as to describes this offense as the actor must obtain or seek to obtain property it is it entails coercive conduct that is deliberate there is intent there and it's to obtain the property getting it away from depriving the owner if the court doesn't have any other questions or any questions to me about the government's position here i just to reach a recap and i think counsel would agree he he framed this as a challenge of the board's decision in a bar as applied to the statute of conviction at issue here was around eous and he's asking for it you know who review there and we hold firm that the board's deference it is reasonable he does not challenge the reasonableness of the of our decision holding not extortionate offenses are theft he he challenges that the board determine that this particular extortion offense meets the board's definition but if the court decides to reach it we absolutely agree that it should defer to the matter of the bar as holding the extortionate offenses which are because the board only addressed the crime of violence that argument never got considered since since the board is addressing the theft defense issue because it was never considered the board should be considering our waiver argument because it was it was never consider with regards to the the merits let me start off with with matter