judge in this case the issue is whether the board erred in not remanding the case back to the immigration court so first off there were cha circumstances in that the immigration court had found that's just just be sure we're talking the same thing you got the initial request for a continu based upon the idea that your petition your client was going to marry a u s citizen and the second one was he was going to try to expunge his two thousand and three drug conviction i gather that in light of the supervening case law day comp for example that you're focusing now on a separate thing which is should it be sent back based upon a clearly new circumstance which is a change in the law is that correct  that's that's correct partially i think there's two prongs to it one in that the eleven three fifty seven b conviction that is the one that was expunged and are certain there would fall under the first time federal offender act the new one arm and var no longer count as a criminal conviction for immigration purposes now when my client was ordered removed it was me fifth of twenty eleven that conviction was expunged on may thirty first two thousand and eleven twenty six days later on the appeal to the to the board we included the documents which showed the expungement and asked that it be sent back the judges position was well there were there was a couple things but one he did found find out that he had been convicted of a controlled substance offense and said at the time he was not eligible for adjustment of status or for cancellation removal he also found that he had failed to file any applications for relief without going into the details of what happened at this time so that was one issue so we're saying there were changed circumstances and the board should have considered that and sent it back to the immigration court but help me what is there to refer back to no application was filed i said on the district court if there's a complaint and somebody wants to amend the complaint to a mandate preexisting complaint no application was filed here there's nothing there in a sense to re mandate to or to reopen doesn't there have to be a discretion then to say that i'm close in this case enough is enough isn't it within his discretion to say i've given you enough chances and that's what he did of course he has the discretion to do that so now by remaining it back to him are you saying that he abused that discretion because we're now forcing him to reopen a case that he says enough is enough on well not necessarily because in his a decision and if you look at the the oral decision of the immigration judge he says under those facts and circumstances the court was unable to find good cause for any further continuances for respondent to prepare this respond it is currently ineligible for cancellation and will an adjustment of status because he has a controlled substance conviction so after cancellation of removal there is still the matter of two thousand and four conviction if you want to talk about the two thousand and four conviction yes thank you and i feel this is where the board really took a wrong step because the immigration judge had never made a finding th california business and professions code forty sixty was a controlled substance conviction the immigration judge was directing its attention at the two thousand and three eleven three fifty seven b conviction so and that's what we showed that was expunged to the board the i understand it will have to seventy was expunged but are you saying that this other conviction was also expunged i wasn't saying that it actually was but we never provided any time that's not before us basically you dealing the one is expunged yes but you've got the second one and of course there we run into run done and they come that's correct and that's where we feel the board was wrong because they said  and before didn't know but they comp and ran down because they haven't decided yet correct their decision was september of two thousand and eleven and they said even assuming that respondents expunge two thousand three convictions me alone no longer barb record in the case respond that was also found guilty on march second two thousand and four of possession of a controlled substance period they didn't indicate that it was for california business and professions code forty sixty and i would assert that even at that time it was not a controlled substance offense and then now even with the new case law even more so we have a stronger argument that it's not a controlled substance of what i gather i assume what you would be asking us to do is just send this ba  and the crux of our argument is that at the time of the well and i'll take a step back this respond that he had five court hearings because there's a lot in the record regarding him failing to file his applications for relief before the immigration judge he had five court hearings all of those five he was in custody those five court hearings were through a span of about forty two days the first three hearings he was not represented by the attorney the first one was just in a group setting the second one he said he was looking for an attorney the third one he said he had found the attorney but the attorney was not available to come do you want to save you time you do forty six at this point if you think and i'll summarize reluctantly and the fourth hearing was when  was all over the place he was asking him if he was actually from mexico on the record government counsel actually had to advise petitioners counsel not to have him saying things and asking him questions on the record to talk about what the  to analyze the two thousand and four conviction in the first instance first of all we don't have any analysis at all in the decision as to whether to categorical matches that visible that's the government this court has to address the abandonment issue because it's not on the record but petitioner filed a motion to reconsider and the board deny the motion to reconsider based on this two thousand and four conviction because he had abandoned his applications for relief so merely reminding for it to consider the two thousand and four convention is futile because the board will say hey we ruled on this he abandoned it  and issued a decision in that regard so firstly intervene in case law from your perspective doesn't make any difference because the door was closed the case was over end of story correct there's a second there are secondary arguments as well r one thousand three point thirty one c immigration judge may deem an application waived if not timely filed on march fifteenth then aggression judge said over proceedings for the in part because he had abandoned his applications for relief if we find that intervening case law sufficiently changes the landscape it would make more sense to have them analyze it in the first instance rather than for us to sort out these issues right i i'm not sure that if you abandon an application you're held but really i think that aside if we were to it would make more sense for them to apply the camp and all of these other cases t and so in order well that's a yes or no do you want us to reach these issues and analyze it in the first instance if we get that far i i think that is necessary given the board's decision that's not in the record but referred to in other filings where it denied a motion to reconsider based on this two thousand and four conviction because he had abandoned his application  is there any situation where change circumstance change law or any circumstance where a party who has abandoned is still entitled to reopen a remained or is it your done he can certainly file a motion to reopen it but given the length of time here i don't want to speak for the immigration of the bar well anybody can file anybody can file a motion but what circumstance would justify reopening if there's a  law as to why he was ineligible before but is eligible now that would be subject to a motion to reopen as well thanks for  this work needs to be done before the agency i mean let me just ask you this counsel just be sure i understand the government's position is it correct that the government concedes that the two thousand and three conviction was in fact expunged and therefore the government is relying exclusively on the two thousand and four convictions are correct well the board basically assumed argue when doe that that that was the  conviction is out of our view correct so we're going to two thousand and four and comp in effect say that if their teachings are ignored that those convictions can be considered for any purpose so what do we do with that you know i know you've laid out a bunch of procedural reasons and in the case told substance the arena under this court continually appl we're going to give you a couple of minutes as i mentioned so you're welcome to use them or not as you see fit two minute thank you in response really quickly first of all in looking at the remained what i'd also like the court to know the documents in the record all that was ever supplied to the court is key summaries and even the immigration judge indicated that the appear to be on line printouts  so that's going to be a difficult even for the board to you know go back and figure it out as we can i just ask you this putting aside for the moment and on and calm the government has asserted any number of technical impediments to your ever getting back there with burden of proof of course c f r ten three point two point one administrative exhaustion what's your response to those he's saying even if you don't we sent it back then i can't do anything because this case is over administratively what's your response to that well when you look at th the statute he cited in and it is true that the judge has the authority to set time frames in the filings and it was set for me fifth for the filings of applications of relief and the conviction records and and that did petitioner my client had a drug conviction at that time he no longer has that and that's what everybody seems to agree on so so that the pediment that are now raised were originally based upon the drug conviction which is now expunged that changed the landscape then they go to a different conviction and that's the one where the statute in question and of the business and professions code has doesn't count against your client right that's correct your honor that's our petition that's our position we also assert that even if we had complied with the immigration judge's order on the fifth of twenty eleven and there was a forty two b cancellation or remov filed he wasn't eligible at the time and that's the big difference in this case is he was not eligible we agree we acknowledge that we acknowledge it was not the immigration judges orders were not complied with