eligibility for those deplorable for aggravated felonies in addition those interpretations violate equal protection and basically attractively principles i'd like to turn to the retroactively argument which is number three  first there are two retroactivity principles that issues here to the extent that the regulations are understood to change the rule under can't come a law this court's decision isn't in permissibly retroactive application to the extent that holding of the case appears to be that we're dealing with ground well they never they never said it's good enough three hundred ten because they noted that there was a possible overlap but they said for policy reasons we're not going to speculate that the only way this could be different and maybe this is where you're going is because of something coming out of the nineteen and the the in addition in one nine hundred ninety five here aggravated felony limitation two to twelve crowe could have been in miscible that's a factual question that we're not going to speculate on the reason i say that that the factual question is number one is the conviction such of moral turpitude that's clear is too detailed for us to really do a true reflection analysis because that would have been the question in frances the issue was individual who had traveled and came back and got the waiver versus an individual who traveled came back without a problem picked up later and then got the waiver no pro talk the board already said those people are equivalent so the frances equivalence was actually the person who travelled came back got the waiter or later and the person who would convictions from the waiver that aggravated felony convictions would be included in the waiver otherwise that amendment barred for five years has no meaning so well that's certainly true but there are two possibilities there one of them is that they meant to  knowing the the history of denying two twelve c to firearms offenses congress understood that it would be available to people with aggravated felonies all address the issue of those by the court in its in its order and and i'll try to answer any questions you have but i'm going to try to keep this as simple as i can i i may fail but i'm going to try the court first asked whether the statutory know you're right there isn't and the reason why there isn't is because section two twelve see throughout his life only apply to aliens in exclusion proceedings it only gave the attorney general authority to waive grounds of exclusion it's and it was a gran inevitably in every occasion also a crime of moral turpitude the court the board and this court have have addressed that argument your honor and they have seen it for what it is which is an argument that the worst think your honor you do have to go back to francis because that's the source pond here right and in france as there was no doubt that the alien was subject to deportation for possession of marijuana that had a very clear analogue in the grounds for the admissibility that was the the only distinction between an alien is whether he is being deported or excluded another word the only difference is whether or not the alien has travel is there an equal protection are and we treat him differently depending upon whether he's traveled abroad they've committed the same criminal offense one travels abroad the other does not one can be booted out of the country the other can't instantly they're not similarly situated instantly they come under different  we're talking about the aggravated felony phenomenon the argument you're getting from you particularly and from the petitioners is that the expanded definition of aggravated felony in aruba has changed everything and requires a whole new approach to this area thing now nothing's changed with respect to section two twelve i mean i flinched when someone said forget about the statute where we have the statute that's the only that's the underpinning of these cases and if you grant the rel honor is that it doesn't matter how large it is you're still talking about equal protection analysis sincere it doesn't change that one bit and to argue is the petitioners in any key do that the retroactive application of the or amendments which this court has already considered a couple of times an hour ago on a on again in court as and found no due process problem and no statutory interpretation problem that somehow changed the world so that now we have to have an entirely new equal protection issue there's no grounds for that there's absolutely no precedent for that remedy the successor to section two twelve see bars completely aggravated felons lawful permanent residency getting cancellation of removal so what the result that's being urged upon you now would do would be to create two classes of aliens post what is your best argument that there is not an equal protections violation when they're both exactly similar at all respects except one went home to his homeland and came back because one your honor is subject to grounds for removal all the other cases that you considered they didn't have that analog and the court held that that was sufficient force for equal protection the two classes of aliens are not similarly situated if you do not have an analog you are not some really situated that all that's all that come and go held and the thrust of the decision the rationale of the decision is not limited to to the particular crime involved in is not based on whether you travelled or not it looks to the statutory language if you have it then you're similarly situated if you don't have that statutory want to ask you answer your question i'm glad neither of music came up but the differences still you still have to look at whether it's not what the what the nature of your crime was we make this point in our brains section two twelve waves ground very much whether the waiver granted at the border was ever conduct is way rounds based the conduct would be waived the grounds would be waived we are saying you did something because you did something you are now inadmissible for that under under a provision of the immigration i can we forgive that we seventy from one nine hundred seventy eight it's said that if you are to portables for something and you leave the cut get accorded and then you come back with a waiver and you get your residency you're not automatically read up portable otherwise there would be no point in giving you one yes it's admission you're deportable if you are a conviction after admission so those people who are admitted with a waiver are in mixed it and they're not portable after admission that's also why as a practical matter those people aren't to portable anymore and i think that also i'm just waiting for the clock to be proper he goes now yes right but it's ten minutes each pro state throughout his representation and in his notice of appeal he indicated that one of his reasons for the appeal was that the judge erred in the withholding of deportation adjudication addressed that the correct resolution is for the case to go back to the board to address in the first instance whether or not the judge adjudicated that particular serious crime question correctly the board mistakenly thought it had been didn't this is not a case where the board merely summary from the judge and therefore this court or reviews the judge the court reviews the board here the board didn't address the particular serious crime or the withholding issue even though mr beebe unrepresented to review it we think that was the board's error in not reviewing that question particularly not to address this you have to address this in the first instance and then we can review it's a legal question but the board mistakenly thought that mr b hand raised it all in artful though he was this court case law indicates that on pro we were mistaken in our brief to make an exhaustion argument but and my colleague used the word waiver the petitioner didn't read the issue before the board so the question is what obligation of the board really have to imagine what issue the court routinely holds of that's a waiver of the issue i think that i think waiver is appropriate here i think the petitioner did waive the issue i don't think the board is obliged even under this court's case law to imagine arguments and then answer them so i don't think  in the in his description of that quote in that he has in his weapon in his primary brief the words in his discretion were omitted and that's rather telling that is that's an issue that this court ordinarily cannot thank you very much