good morning your honour's may please the court joseph port on behalf of the petitioner demas alexander fuentes i would like to reserve two minutes for rebuttal possibly the court in this case is that the parties to address whether the board of immigration appeals h deny on discretion in the first instance or deny on discretion and assuming that the assuming the i j a did not make that determination and if not how does that affect this pending petition for review first the short answer is i don't believe the board of immigration appeals had authority to enter this decision in the first instance since the i j a didn't and since we're under the assumption i think it's necessary to look at some definitions the first definition i think we need to look at is just the word review itself looking into black's law dictionary review basically means a reconsider reconsideration a second review or examination it's not something that's done in the first instance which is the tenet of most they're not looking at things for the first time they're here to review what's been done below to make sure that there were no errors committed it's not a trier of fact and in essence the determination by the immigration judge in the pending case referred to statutory which are not discretionary elements and there was no specific discretionary finding for the board to impose that finding has grave ramifications first of all by the board doing that in the first instance or so respond to an appeal that could effectively cut judicial review off for litigants because once the board wants to characterize it as a discretionary determination and the person is not allowed to come before this court and argue the remaining basis of his case so it has far reaching implications at the board decided to do this another reason why i don't believe that it should be extended in this in that sense is because the record is a bit confusing because the i just ordered did make some passing reference that the exercise of discretion right correct i made some passing reference but there was no specific analysis related to it and then the board basically said that they affirm the judge's determination on that but there really wasn't a determination to affirm so it appears the board might have committed some errors so are they affirming a decision that didn't take place is the question i was left with i remember when i was going through this i spent hours spinning and i said wait wait a second what's going on here i don't see that the board addressed that the  second thing that i want to look at after just defining review is we need to take a look at the immigration and nationality act and section eight u s c eleven zero one which is section want to one every forty seven has a definition of what a final order is and that is a dirt determination by the b i affirming such an order or the expiration for the period of time for review doesn't really add a whole lot of analysis or information to that that if we look at the regulations eight a discretionary basis i did not and one of the reasons i did not is because this court lacks jurisdiction to entertain a discretionary to trial but you could have objected that the board didn't have the authority to do  that a waiver i don't believe so because if the qualia are to exhaust i don't see it as a failure to exhaust because if the decision and what we're looking at the decision whether they made is correct and it is raised in the briefs and if they are affirming something that didn't exist then i don't see why would why it would be necessary to do it reconsideration on that matter if you can but that's  raised the fact that the record is a bit confused looking at this construed it as an exercise of discretion by the i j a and said that they were going to affirm that exercise of discretion id's decision mentions that based on all the that the holding of the i j a was based on all of these reasons and they're going through a litany of things the respondent is statutorily also ineligible for cancellation of removal the only mention of discretion is a passing reference and a general terse blurb as to the law there's really no analysis present or a conclusion leading to that to the subject it's more than ambiguous if it wasn't decided and for the board and for like defacto when the board does something like that when the party really isn't on notice that that was a basis for denying the case the case was denied because the judge found that the petitioner had to crime involving moral turp and as a matter of fact which leads me to another point is there one of those crimes clearly probably is not a crime involving moral turpitude the for example the petty theft although normally categorically petty theft offenses are considered an involving moral turpitude the offense here was a misdemeanor the petitioner was sentenced was charged with it was reduced to an infraction and the only penalty imposed was one hundred twenty dollars fine proof of that is located at page forty nine of the administrative record but more importantly there is an annotation in the minute order that shows that the hundred twenty dollars fine was suspended which means there was federal appendix three seventy six found that in these circumstances that a non incarceration suspended sanction cannot be a predicate for a conviction so it's not even a conviction under the act now i realize the government has urged the court that if they do find that there is jurisdiction for this portion that we should hold the case because there is some pending litigation on the remaining crime involving moral turpitude conviction but in the event that this is not a moral turpitude conviction because it's it's not even a conviction under the act he's only at most has one so i would suggest that when an appellate body is conducting a review they need to know exactly what they're doing and given this ambiguity it makes the job for this court more difficult and we're not entirely sure what we're deciding here i think the prudent course of action in this would be to remain and allow an opportunity for the parties to do this question and if so then we wouldn't have jurisdiction correct your honor yes and i regrettably in looking up the case there is a dispute as to the facts in this case so as far as a mixed instance and for the answer that question we should look to the regulations that governs the board's authority which is eight c f r when thousand three point one to three and it's important there to see what the regulations say that was that the board can do and what it says it cannot do and then try to figure out what the balance of that what exactly whether the board is permitted to do what we did here and the board can review do novo legal issues and discretionary questions and the application of under speed a lot of fact those are all reviewed a no vote by the board and then the board's explicitly prohibited from conducting fact finding on its own so  although there there there may be some question about what is the definition of review the appropriate and he determined what review means there would first be the board for that it's for the board to determine whether that review means they can they can reach that determination and in the first instance i think that it's important though to look at what they can't do that they can't engage in fact line in here they haven't engaged in fact finding so they haven't done something that the that the regulations explicitly prohibit them from doing the facts are clearly on the record the facts that go to discretion here and although counsel says that that there isn't much analysis here will that there is a full page of analysis on the discretionary decision by the  immigration judge then goes to to discuss whether or not it's necessary to look at whether either of these are well whether the indecent exposure is a petty offense that would make it not so subject to  history which will go to the discretionary analysis but the bottom line conclusion on page this is now are sixty nine based on these reasons therefore respond statutorily ineligible for relief well the discretion is part of the statute also your honor i think that's what the i gave was referring to there under the statute that immigration judge may grant cancellation and move on that's what makes it discretionary and in the statute and so but i think it's also important to look at what what is being analyzed here and it's a it's a criminal record if he begins by stating that the two cia employees but then quickly moves on to the discussion of the remaining criminal record where there are multiple vehicle or vehicular offenses here and and then that discussion also references the distain that petitioner obviously has for the for the law and for appearing in court and for probation and and has lengthy sentences associated with what normally would not have a lengthy offense lengthy sentences and there's no reason to talk about those except the discretionary decision and that's the fact finding that's engaged in by the i j a here is what are the facts that would go to an exercise of discretion and and i wish that the i g here had included the actual words and because of this i deny as a matter of discretion by the i g didn't do that i think that when you look at the structure and when you look at the actual analysis though i think it's clear that's what maybe not clear but i think it's evident that that's what the i g has done here and that's what the board of the board looked at it and the board was comfortable enough with this record with what is stated fear that the fact finding two to conduct and to to make a discretionary decision was there it had already been done and so i would argue that the board has the  threats by themselves would rarely if ever be sufficient but in particular here we're talking about two threats that two thousand and three two threats that were made while he was in the military and and those threats  the guerrillas might want to kill him one of the the military the girls were engaged in our conflict at the time so i don't think it's become a surprise at anyone that that the gross might have wanted to kill him and again that the threats were vague he heard from a friend who had heard that somebody else said they might want to kill him and the vagueness of that threat was repeated even after he left the military and and under this court's case law again that's wholly insufficient to an established past persecution and to i would like to reiterate as the court has even noticed it is ambiguous and the court is affirming something that wasn't even found there was no finding of discretion what they decide in their head that they think it might be historically in a lot of other areas where they have issues with things like this the proper course is to remain on for example when on a case involving a reminder there is the vinter a case which i'm sure the court is very familiar with we're of interest as if something hasn't necessarily been decided if they've got to go back and allow them to do it in the first instance here there were specific findings that don't say that in the course of appeals i mean i respectfully disagree with coun but it is i think it's normally stated as a matter of law and as a matter of discretion when you refer to the statutory elements you refer to the statutory elements and then separate and apart from that there was an exercise of discretion by the attorney general and here that answer or the at least the judge's words were statutory elements i'd also like to point out the word is did no remedial review which means a new it's not first time review so if that decision hasn't been made immigration appeals different standards of review that they have and once as did novo review of discretionary determinations and they're separated out by what exactly they can review and what they can what the standard imposed in the scope