permanent resident he was conferred in error first of all we would distinguish wanting to seek it in that these were very black and white factual allegations these individuals were never eligible on the basis of that definition under the i and a mr mark has just released there could have been a waiver that was either submitted or possibly implicitly or explicitly granted by the consulate they had full access to his criminal records he never misrepresented himself record it would appear it would seem to both my client ny that that should have been included in the immigration judges proceedings and none of that record was ever ordered or developed by the court and one of the main problem that that i have seen and that my client is seeing in the immigration judge proceedings is how limited the proceedings really work he the judge preacher amid all of the applications for really finding him legally yes your honor he would have applied for a waiver of the inadmissibility bar based upon the relief that was available in one nine hundred ninety one and again we would argue that the consulate had full access to the records s trying to still understand and legally where he would fit in because it almost sounds like your argument is one of a stop all correct as you know is a tough road to climb against the my little you know i just i understand your honor and in essence what we would argue is that at a minimum this case should be remanded for further fact finding certainly if there was a waiver that was submitted or should have been submitted or the consulate knew about this crime and just decided not to act upon it in its adjudication it would seem that that the quote unquote error that was committed was not a black and error this is not a case like a seat or won or wrong where we're literally the individuals never qualified he was that it was that argument raised before the immigration judge i don't believe that that that particular argument was ever given an opportunity to be developed the record was never developed i don't believe my client doesn't believe that the government ever fully established that he was removeable as a non be in the united states the problem i guess we have commissions that say that it doesn't matter that there was no fraud it's just that there are it's not unlawful kind of goes through this case just from the almost circuits including the ninth circuit and says it doesn't matter that there was no fraud if in fact the crime was disqualify file that case but i again would argue that if a waiver was available well you used the waiver available in that situation upon when applying for intrigue yes a waiver would have been i should have done and i apologize for that if i may cover something briefly on that issue related to jurisdiction because i know that the government obviously one of their crux of arguments is that is that the substance of this case really isn't relevant whatsoever that the jurisdiction is going to be the primary issue in this case and again i would argue that number one i don't know that it's been  trial before the immigration judge that he was a criminal alien that this wasn't an issue that they had gotten around and secondly lou he had armand or as in all the cases that follow from there as well as in at the u s supreme court cases do provide that immigration consequences cannot follow generally from first time simple drug offenses and mr marquez is in the process of having his record expunged of that record which will then qualify him of course for the f process now of having yes your honor is free his nine hundred eighty five crime expunged and potentially a vacation of judgment as well but at a minimum it will very likely be expunged the san diego court closing counsel said first of all you have is absolutely not applicable because there's been no expungement and there's no indication that there ever will be an expungement on on account of a rehabilitative state statute the holding in lieu hand is very narrow so lou hand doesn't interfere with the court's lack of jurisdiction at all and the second general thing i'd like to say is that in my opponent's beginning of her argument she mentions many things non court still have jurisdiction to review final order issued against daley in his removable by reason of having committed a criminal offense that covered in section eleven eighty two eighty two and  family values well that's unfortunately given the legal issues in this case it doesn't matter even if the immigration judge would have found that he was eligible for cancellation of  statutory language by reason of committing a criminal offense specified in two fifty two to forty two a to see if the charging document alleged that the petitioner was removed before having committed the specified crime year waiver available at the time could i think time of what you're not at the time of his initial entry yes i'm not aware of one but i don't know i'm not going to say yes or no i don't know if i could just get through the jurisdictional argument then i'm happy to get to the merits conviction so and he doesn't contest that conviction was at that point we wouldn't have jurisdiction that's correct but we would have jurisdiction for example to determine whether the b i a had interpreted as a matter of law question no because the the i didn't have any call to determine that issue because it wasn't raised to them they didn't exhaust on that issue so they didn't they didn't have cause to and there's no question in this record that he was convicted of  let's assume that the record showed there was in fact a waiver at the time he was initially admitted where we didn't take it wouldn't take us any place your honor because it's his burden to show that i mean he didn't obtain i guess the point is he didn't obtain the waiver you know i'm saying that's assume for the moment he did obtain a waiver and it was shown in the record different case where would we be i mean this is highly speculative your honor i suppose if infact there was a waiver and the consular official granted him the waiver and he established that a legally granted your honor i mean we're talking about facts which are not in this case whatsoever i don't know that i want to speculate on what your distinction is in a kid in a in an issue which is absolutely not presented by any fact so you don't  i didn't think that i was on my high horse but i guess i'm happy to answer your question in the best of my billet and help you out if you restate the question the consular official and let me also take issue with something that the counsel for the petitioner said she said very i think very sharply that there's no evidence that he was admitted through fraud or there's no actually no evidence with counsels suggestion that there was absolutely no evidence with respect to what he no evidence that he committed that he did not disclose is not entirely true because their counsel for the government at the hearing said that he had looked through the visa application and there was no mention of his drug possession crime though that's not evidence either but i just wanted to balance out the speculation that petitioners counsel offered again the answer is a permanent resident under a visa issued by a consular official in mexico but such a visa was issued i mean who knows mistakes negligence or who knows but the individual is not intitled to a visa at entry then that these exemption for no status he was not a lawful permanent resident he was never a lawful permanent resident under wank and he can't use his permit that permanent residence because he