in terms of trying to determine whether we have jurisdiction it looks like the i j dealt with a residency issue dealing with the stop talk rule and discretion as a backup if you will with that and of the appeal to us is doing away with residency kind of lost as to what's usually you have to bring up an issue however a smith case says if you have a notice of appeal that touches on an issue that's exhausted even if you're awkward we didn't deal with that but then you said a straight as to what's going on yes well throughout the entirety of what you just cancellation to remove all under the seven year issue and i just exercise that discretion that alone should be enough this court has said so in hopes of a holder in johnson the attorney general i don't occasion of an tuesday states that nothing in this chapter will eliminates judicial review shall be construed as precluding review of questions of law are raised upon a petition for you filed with an appropriate court appearance this question of  cases in this case that really speak to this issue the most recent as partner and we also have our tell us which was in two thousand and twelve now we reached this case before barton was issued that case although it dealt with a different provision the grammatical structure is very much similar to the structure that will not appear in that case justice ginsburg interpreted concluded and i quote the entire section eleven on one phrase committed an offense identified in section eleven each to a two on a straightforward reading appears to vary to a lawful prominent resident who has been convicted one for which he was found to be in unable to receive cancellation or move all so the question was can it can it conviction that it's not the one that led to  commission or conviction of that crime it did go that far but that issue was not great and here we have different facts we have a single case single crime currently he is he's pursuing it she just september st she was denied his conviction really but he is currently appealing it seven seven this case is still ongoing which issue appears to be foreclosed now by barton by not having to ineffective assistance of counsel before us and isn't in effect by the boards where they work for whatever just just like but barton i still find very persuasive on the subject looking at how do you consider the date of an offense committed determining the proper sentencing that analogy works for martin because here you have possible connections cherry different immigration consequences she but that application doesn't apply to a case like this one where you have one crime in every sort of a statue sensually you have a greater possibility for greater punishment for more cracks ok straightforward reading of the stop time rule indicates that it is the date of commission under eleven meet i mean sorry conviction under eleven you need to know that controls immigration consequences that will attach to it you have a statute that has multiple parts and it references another statute so we have to look at both of them together and we end in order to understand it properly we cannot read them in a  refers to eleven if you two which gives us the conviction language we think that that that reading is in line with traditional norms of statutory issue which is now an appeal before us respondent thinks that the language used in the grief to the board which which says that he was statutorily ineligible and the ineffective assistance claim that he raised says that his former counsel was ineffective for even applying for that form of relief so the response to this in is that it's not include simply implicitly raised given that language that says that his former counsel before the immigration judge erred by even encouraging him to reply to apply for a form of relief for which he was never eligible yes your honor the the order the order of the court denying the stay did raise the issue but the court did not address whether or not the issue had been exhausted to the board and in order for this court to law with respect to whether it's the date of the commission or the arrest versus the conviction it was never presented to the board to give to give to argument in the st instance and so because  fail to overcome that jurisdiction or hurdle even if this is a question of law this court cannot review it because because he did not present it our position also is that this court case law such as hocks which has said that something that is raised in the notice of appeal can be deemed exhausted does not apply because it's distinguish court's case law such as hocks because here it's not a case where it was never raised again to the contrary he he and he specifically said that he was not eligible for cancellation o because he conceded that he was not eligible for cancellation of removal the poor was not on notice that that was an issue that it should address because the board did not have notice and did not address it it was not exhausted and this court should  not consider and should dismiss for lack of jurisdiction based on his failure to exhaust alternatively respondants position is if the court does seem that this has been exhausted despite him despite him saying that he was not eligible for the relief he is now seeking our position is that the supreme court's decision in barton v bar resolves the issue in barton the bar the supreme court stated as congress specified quote as congress specified in the statute and as the b i and the courts of appeals have recognized the date of the commission of the offense is the key date for purposes of calculating whether the non years of residence even if as in barton's case the conviction occurred after the seven years elapsed that seems to describe the exact situation that we have with with mr price the supreme court cite there is one clarification worth making here although it is an alien's conviction a qualifying offense that renders him inadmissible for stop time purposes this period of continuous residence is deemed to terminate on the day he initially committed that offense so in effect conviction based in admissibility related back arc term to the date of the crimes commission since the supreme court issued in the th circuit has also come out and said in our get to that it was the date of the commission of the offense that's relevant for purposes of a stop time inquiry also something worth noting your honor in there was a case that was sort of a companion case of sorts to barton  brief he noted the language of the supreme court could be considered as being authoritative on this issue of what the whether it's the commission that's the relevant inquiry and he filed supplemental prefer and the supreme court shortly thereafter tonight star in that case to respond it does not know of a court of appeals that has gone the other way on this issue and so if this court didn't agree with we believe that the authoritative language of the supreme court in bar resolves the case and that you would not need to remain and however if the court feels that it does not that assumes there is some sort of question that needs an answer from the board an alternative state court he lost and what was he took attempting to do what the state court level it was seeking post conviction relief and specifically and eventually hearing because the attorney that his original sort this out in new jersey's peer court because the possibility exists that he could be removed back to jamaica before this matter new jersey is resolved and it's still somewhat successful to you because what you're doing is buying time well i mean it does give him time to go to pursue no sphere in there but who would be more comfortable if  of what martin says if he is able to succeed and his st conviction really in this case would be essentially moot anyway because the whole reason you know the whole reason for this case coming before you is resulting from instance of counsel argument counsel not have been and in fact it had its theory of this theory statute and correct so you have to answer whether he was precluded it to begin with before you can answer whether cases in particular you on this case thank you thank you