whether fast in prison and misdemeanors a crime of moral turpitude on the threshold to ensure stiction there are unusual facts in this case but the the final we have talked and we've talked a lot and it's but it was not resolved because my friend in the government wants the case in the board and  would argue that the jurisdictional issues are red herring because the board clearly stated that in the final word or that the that the issue is right for final and by the final word of the board of immigration appeals this day simply the board itself said that there was the final word or basically it would be like a  is the final order that well actually the june first two thousand and seven opinion does state that he but that the august thirtieth two thousand  was actually nonviolent dissuasion of a witness but that's right i believe that that's not really before the court because the n c a a lodged by the government said there were two crimes of false admitted the allegations but denied the charge that it was crimes of moral turpitude now usually the government will argue as we saw before that once there's a notice to turpitude so we'd be in the same situation they are and you know this was an exhausted below the government is saying we will help the ending but with friends like that we don't need enemies what you know we were not asking for any assistance we think that that that the issue has not been exhausted below there's no jurisdiction for this court to really look behind the pleadings in other words the pleadings in immigration court or like a complaint in the plea of guilty in a criminal court and it could have been a tactical decision on the petitioners part to admit that they were a chew crimes of false imprisonment were or he could have been out of ignorance but either way he went there and then he came back i well yes because under the recent supreme court case dealing with stays i don't know how to pronounce the agency courts should generally grant those requests provided they're in good faith to permit the agency their consent to further consider its position and things like that i can that's not what you're doing here you want to get it back and you want to get that you charge and you just conviction and then the court that the immigration judge received briefing on the issue including a brief from mr surveys or mistress evaders counsel which observed simply that the document relating to that conviction did not establish a domestic relationship without making any further observations about the nature of that conviction record while its second bite at the apple for a little bit like emigration version of double jeopardy and for it if you don't do it you know it's one thing if if the opportunity didn't present itself that you know we re man things up but when you have that opportunity and you don't do it you know it's it's kind of like how many times can you go back to get it right because everything was available at that time and i'm not sure that in terms of assuming assuming that this is not a categorical crime and then and then let's you what would you be able to show in terms of that the two thirty six under a modified categorical approach meets the criteria well let me i wasn't there in the first place i don't know what all the documents are that that immigration customs enforcement might introduce i know that there is a a complaint i think that was in the record the immigration judge did not address in the board does not address the modified categor that there's a bigger issue though with respect to the question whether the crime is a crime involving real surprises and it's that it may very well be that the crime is categorically a crime involving moral turpitude the problem with the agency s decision assuming that the the i j a decision in the first a decision actually represents the agency's view on the matter even though it's been vacated is that  explain it does not state what standard was being applied by the agency and it does not actually apply that standard so that it's really possible to determine what the different factors are as to why this crime was used as a crime involving moral turpitude we have not responded in my brief to the arguments regarding force and violence and fraud and things like that but those and he argued that not notwithstanding that he would remain eligible for relief from removal it's only after that conviction was vacated that these other issues became more important and i don't not mean to say that it was appropriate to shortcut the process or anything like that you know given the fact of the aggravated felony conviction but that's sort of the reality of case scuse me  imprisonment crime was a crime valving moral turpitude first as i mentioned we don't really have an agency decision that clearly explains their reasons for doing it and it's inconsistent with with administrative law principles for me to try to advance a rationale that the court could adopt to agree with the agency if the agency has a stated second and more importantly it's just inappropriate for the government here to urge that this removal order can be sustained when there just isn't the factual basis for me the difference between this case and other cases where the immigration judge and the agency have relied on admissions of facts is that those admissions are consistent with or at least not contradicted by other evidence of record to me that if you sat here this morning that would it seems to me that if you could if anyone could take anything away from this that the court is asking questions which could give some indication that the court isn't viewing things exactly the same as the government and so the government's taking its position and briefing well this is the way we see it and so we're there for not going to address other arguments because take just you know it's like if you know it's sort of like a fight la la la la la you know i cannot hear you and i want and but then you know repeatedly we're same what if we decide to address it then we don't have you know the government has taken a position that they're not responding that that doesn't seem to be what a wise way to approach things and we've seen it in a number of cases this morning sure what you are if there had been you know a colorable basis for thinking that the court has  diction and not these other problems where the case would need to be reminded of my brief certainly when and if i had an agency rationale to defend i certainly would have defended that you asked for him and all along yes so so perhaps i mean you haven't really given any explanation of why this other charge it was known as it existed why it wasn't on my just at the time there hasn't been any attempt to you know explain that and so it's when you want to you have to kind of have to make it just like when a lot of we deny a lot of petitions to reopen because people don't give us any indication that they want to win and they say well we just want we just want to go back and talk about it we say no no don't think they could have made it any more complicated it would be much easier if we said if people got convicted of crimes period that then they had to go back but we don't do that and so i have accepted albeit reluctantly that i have to follow the law despite it being very confusing it just seems like that the government should sort of similarly realize that we have all this precedent we have all these confusing decisions that probably don't make any sense but they're there and we've got  explain how it's not a second apple and i'm not hearing any explanation as to why this couldn't have been alleged in this other charge couldn't have been alleged in the first notice to appear or any of those things it's just now what you're saying is we the statute that authorizes judicial review of aliens challenges to removal orders is predicated on there being a final removal order throughout the petition for review process now the implications of  fact lopez ruiz addressed and addressed a situation very much like this expressed like it said that in that case the alien had the conviction vacated that was the basis for an aggravated felony finding the case was reopened the court dismissed the court said it would not hold the case in advance and would not reactivate the prior petition for review because the remedy was to provide a or two to get a new petition for review filed if there was a final order of removal reinstated and at that point the petitioner could bring whatever challenges had been presented to the board prior to the do that it doesn't have jurisdiction to review the merits of the removal or not but we do have jurisdiction to say the case goes back we could just as well say the case goes back to cause convictions for officer pardon me i'll mediation officer correct correct what was your position exactly what you're saying right now without getting into the confidentiality issues we have tried to work with petitioner to government to have his body here in person some of the issues well one important reason that he made his presence may be required and i should say that it's perhaps particularly since ice has been revisiting some of its detention policies you know whatever answer might and the answer might have been at one time in the past it may not be the answer any more i don't i'm sorry i'm not prepared to answer that question what i was i was not saying you should answer the question i'm just saying i was suggesting fruitful areas of of exploration if you were to mediate the case it's much harder for us to call them saying you know we've in fact the government has attempted and what some of the things that could be done could be you know making sure that that hearing is scheduled in an expeditious manner making sure that whatever additional administrative proceedings are are  now in light of what you've heard o sponsors responsible lawyers sometimes it's not always to have a case many cases the lawyers fight with each other and forget about what the case is about but it seems that in this case  tenuous yes maybe the best thing to do would be to try to give your another chance to cool who work something out that would be better than what we could do it seems like a broad single sit down i only want to address the last issues that you raised and my associate told me we should give them an opportunity in mediation and we could maybe get some reasonable  two for allegations or two crimes of moral turpitude against my better judgment i agree with my sociate and let it go and you need a ation the my friend is very reasonable but he considers himself turning for the agency which is correct so before he can make any he can't make any decisions on his own apparently he has to request the agency's district council the tre because what is the definition of a common world turpitude and undersell the tribunal which the court which the immigration courts have to apply you can supposedly go behind a record of conviction and so almost anything could be a crime moral so what that has caused is increased attention that that there's been a lot more cases which would have been thrown out on a categorical modify categorical basis but instead any any crime is subject to evidence to get to the facts therefore there's increased its pension and and i can you know i'm happy to to go along obviously with whatever the court orders the court wants to suspend for us to try mediation fine i have no problem with that i just don't think it's going to work and just one last thought no matter how reasonable i am i don't see that the government is willing to bend and the this court obviously can issue decisions about what is a crime of moral turpitude without remaining to the agency and under skidmore where there's an unpublished decision where there hasn't been  development by the agency of a of a valid or consistent rationale or a very recent decision then the unpublished decision is not persuasive the our whole system of article three judges of course is to sometimes render