crime as particularly serious then an immigration judge cannot consider the course the specific facts and circumstances of a petitioners conviction but on the other hand if immigration judge does determine that these facts that the elements of the offens bring the crime based on the elements alone with indeed nature or the category of being particularly serious then and only then can the immigration judge consider the specific facts and circumstances under wherein the engage in the analysis of the elements of the division but the court approved of the manner in the process by which the immigration judge dad and three the court jumped to the nd step of the inquiry which was the specific facts and circumstances of dennis's conviction the board says that both parties in immigration proceedings should have the opportunity to explain and introduce evidence as to why a crime is particularly serious or not losing a good opportunity to argue why the facts of this crime were not particularly which was news crime of which he pled guilty to he actually never had a chance presenting evidence as wide back base of the elements of that crime there is no particle that is not within the crimes that could be particularly serious of the i j may not have analyzed the if you're correct there's these to be just two step process if that's in effect what dennis requires and i know that there's an issue before court and bank court  clients the attorney general of the discretion to make those determinations but this but under the board's case law there is a process that they're supposed to go through in making those determinations let me ask the follow up to that question which is basically to just look at the consequences of immigration judge would have never reached that the specific facts and circumstances contained in his plea agreement and in fact the this and that as well as the prince presenting report and one of the areas that the immigration judge did was that she she specifically found  presenting report to be quite dispositive in her decision making which would be appropriate if she had analyzed that st step of of that and i am and then is angry and independently determined that the elements of  substantive law or five were dismissed so the on on remand if the immigration judge tempted to shift the argument to that point that a lock about would be and permissible because he only played guilty and was only convicted of conspiracy the board immigration appeals did independently look at the elements of a crime of conviction for example and matter of r e m in two thousand and twelve the conviction was it was child pornography and the court didn't even reach to the specific facts and circumstances actually agreed that the court found that the that was a particularly serious crime because child pornography independent of the specific facts of a petitioners case was something that could be that was an intrinsically serious offense and in fact  that petitioner an aryan applicant rather r e m only played ali was guilty of possession of child pornography but the court said because the that he did court did not have to determine the facts even though the facts were not that supply cooperation evidence cooperating evidence or or explain it on availability before before denying a claim due to lack of cooperation and this comes this principle was introduced and i do live the ashcroft and because there was nothing to cooperate the testimony of whose ego but only man he had he does he should have the opportunity to submit documentarian evidence not whatever evidence to immigration judge is looking for to supplement his testimony that he makes i think you government here is not arguing that there is not a st step in this in this test cricket will be serious crimes in the circuit where arguing but the board applied the nd in fact that the agency applied the st step here proposition that financial crimes can be but don't necessarily have to be serious correct in the threshold of this test the the test the st prong of this test is that you need to look at whether a crime potentially fits within ambit of a particularly serious crime so the crime can be as cap with help like nonviolent sorry nonviolent financial crimes can be particularly serious crimes then not kaplan covers that st prong that in that case securities fraud was a particularly serious crime cap would also said that other financial crimes can be particularly serious crimes and here we're dealing with conspiracy think is that that st prong under kaplan was covered that it showed that it could be a potentially serious serious crime and then you go to the facts what you're saying and then you go to the facts but the problem with the i j a here is that the idea was straight to the facts right there was i mean st argued that there doesn't really need to be again this is a very low threshold that we're trying to to me under this st step and because this court does have a precedent kaplan and that covers the elements of the crime in this case i don't think that we need to be getting into the particularly elements here but i will say that the board did isn't part of the maybe we have a timing issue shouldn't we wait to see what the unbanked court does  before we engage with us as you're finishing gauging with this issue i i don't think that that has anything really that that that changes our position in this case or changes to the pastor this case  i think in both cases we're i'm not we're not saying that there's not a threshold test here in that the trash was conducted in that i believe i'm sorry i'm not too familiar but i believe that that had to do with not aggravated felonies correct establish that the government in that case argued that there is a step one which we will argue in this case as well and i don't think that we're deviating at all from arguments on and either but if the court would like me to supplemental and brief  doesn't that case fit the rule that requires notice of the need for corroboration i think this really have to treat problems one you need to cooperate whatever it is x y and z and two i'm going to give d not give the correct notice an opportunity so the board i mean it was on no notice took to address that argument but in any case where you agree that there isn't a sufficient isn't the fact that they different arguments one is a kind of overall burden of proof argument and one of them is and procedurally the i j a erred and i don't think that the board would be on notice to address that and possibly remand down to the to immigration judge at all you argue before the the board is that i just got it wrong on collaboration not that they didn't provide us the right process on collaboration in any case i think that what we're dealing with here is more decision she accepted those as true and found that as a just accepted the fact that his relationships and what he posited as probable problematic relationships even guys gave them the capacity to torture him and that because of the same ties the government will turn a blind eye to his torture because back to pennsylvania and the that the peers ready so he brought the issue to the fore and weep on the wave  notice of a straightforward issue being raised on appeal fisher is deemed to have exhausted mistreated remedies i mean is a very low bar ok all right is give him the chance he may not be able to succeed but at least give him the chance to tell him what you think is missing and give that person the opportunity to fill in the blanks i agree that that's  so let's say that's the case petitioners characterizes this as a lack of corroboration case when in fact it's a burden the persuasion case it's a case where the people the judge found that yes she said that there were times that he didn't you brought up certain evidence but i think evidence needs to be corroborated by however you want to do it but this evidence that evidence of this other other states to be corroborated do r day but i don't think that that's the case here because because in the end well again she cited certain spots that need a crowd ration in the end and there's two hundred think the two main points of lack  arctic specifically says however the court notes for the record that even if the respondent has had threats against him to start with the respondent is a candidate for protected protection against torture and then with respect to the suggestion that ex president ward even if he is related to his easy do something awful to vindicate his easy is supported by nothing at all in the record and there's some other than some of pining that is expert on tanzania and the respondents own opinions about that this says you can always present more evidence and i can always find parts of your claim to be weak but those aren't lack of collaboration cases where they would be the person who was a coconspirator with leave the country right yes and the fear is that if he goes back he will he will be harmed and the government will turn a blind eye now the argument possibly against that is that his family has some political connections as well but that doesn't that need to be it but in part corroboration is a timing issue that is you don't wait until the time that you give the decision and say gotcha you should have corroborated x or y it's at the hearing you need to say i think you need to have some corroboration of this do you have that information or that evidence was you know if you don't then perhaps we should entertain the possibility bit adjournment for purposes of allowing you to attempt to get it i think and i think i could with that and i think the reason that this is distinguishable is that how do you even presented that evidence this is not a gotcha case because she didn't his claim didn't fail on him not having enough evidence before her evidence of his relationship and evidence of the threats because in the end she said even if you didn't show that even if i i did find enough evidence of these threats  in this case then there would have been air blow but sense it was not i don't believe that the immigration judge had any obligation to provide notice an opportunity since he didn't need or didn't find that excepted that evidence or those claims given the evidence that was before her and went forward and made the decision even final i'm sorry i'm being a little bit convoluted i know what i'm saying right now i think she took the places where she whether the crime element can even raise the possibility of being a particularly serious crime if it doesn't then we're done so this indicates that it's not a this doesn't this doesn't necessarily indicate that it's a low or this does not set indicate that it is a low and then we raise it and then we again raise the issue on a petition for review which the kaplan in other cases do say that it's a legal determination that can be challenged under the act then then then i think that's the time for the court to make that that determination of whether there is a point and your honor pick up on it that the the heart of one his progeny is that the petitioner should have an opportunity they should be put on notice to cooperate certain facts and as well as have an opportunity to supply the cooperation or explain that cooperation and he did sufficiently exhaust that by by saying things such as that that the board and immigration judge never gave them an opportunity to explain why certain evidence wasn't available or not and that goes to the heart of and finally we disagree with the general that immigration judge's decision was based on a burden of persuasion her decision clearly indicates that it was based on a lack of cooperation because she things such as there is nothing to support this claim other than the opinions or rambling openings of a good there's nothing to support this claim other than testimony so she she clearly indicates that she received the testimony and even been uniformly excellent and you are to be commended as you are restored for the work you do it is it is a pleasure to have you here and i hope this program continues i got my start before the