that she is not subject to removal on either of these charges and the failure of prior counsel to put to or to further this argument on appeal and to adjudicate these issues as a matter of first impression that i continue well the board's denial was solely on the grounds that petitioner had failed to comply with matter of lazaro we are concerned about this because the record has evidence contacted prior counsel but before we get to that issue i'd like to address to the court more foundational concerns first of all charge prior counsel had initially a contested charges he had then promised to write a brief but did not and on appeal he dropped the court has found failure of any counsel to advise a client to show up to apply for requested will leave as afforded the the documents don't show that she was removed or that the crime qualifies as an aggravated felony then we have jurisdiction that's correct your honor and then contest world of a modified categorical approach and we when we look to the documents in the in the record of conviction that are available to us that's correct and here we have the charging document i believe  information and the judgment of conviction that's correct why isn't that enough to show that she was convicted of a crime of violence or whatever whatever because the charging document itself is even under a modified carrot or a categorical approach we're still looking at the nature of the crime we're not doing a factual analysis so actually has been sentenced to one year rather than two the child all i know is i was hired about six weeks finding counsel very difficult he's not going to strangle before the public he works for the department of homeland security within several offices and i had to track him down but it is  strategic benefit to doing withholding of removing twelve years after leaving your country of origin when instead should you not be an aggravated felon proceedings could be terminated flowed from the criminal activities indicated that the activities very nature was one to provide was one to cause a child a traumatic condition your your position that the jurisdictional argument begins this analysis and normally would of course but here what's before us is the question of whether the board abused its discretion finish here so in order to do that we have to deep go much deeper then the administrative record before us in order to conjure up a jurisdiction reason i understand the underlying jurisdictional problem but that's not front of us isn't directly in what's in front of us just simply whether or not as to that issue the motion to reopen and whether or not the board for a bottle on and we'll hear from the government thank you good afternoon may please the court jamie doubt on behalf of the respondents trying general i want to try to maybe clear up a little confusion about the i mean i think that we argued in our brief the order that the court to consider the issues here would be one arguments mean that we might reach that issue by way of prejudice or not that we didn't have jurisdiction to consider a motion to reopen on the merits in the  definitively or is it well i mean it's our position that the motion to reopen should be the first consideration in the first question should be did the board abused its discretion if the court were to find that the board did have discretion then we would argue clear that there was no indication that former counsel was notified of the charges against him and the court has held that in the right that the former counsel should be notified of the charge then given the chance to respond  in that case the court found that a merely being former counsel name at the bottom of the complaint was not enough to show that former counsel was notified in this case there wasn't even that much of a showing that former counsel was government's news tonight even though the court has no that's a requirement this court has also interpreted that's a very important requirement not just kind of something to pay lip service to important that former counsel have an opportunity to respond and you know we've got some merits the problem with notifying the state bars is that there's a big difference between our practice and unethical violations so most of the state bars reject the elisabetta submissions that's revels so we're asking the board's asking and we've asked people to file what some states consider frivolous bar complaints against attorneys to show that they're serious about their ineffective assistance of counsel claim so now we force people to file frivolous complaints the agreement hey look my counsel is supposed to do this and didn't do it to be able to show that counsel's was notified that the alien thought they had some sort of agreement in that it was breached and three got it also states that your complaint could be filed with the proper authorities or the alien could explain why such a complaint was not filed so it's not an absolute that a complaint has to be filed an alien can explain reasons why such a complaint was filed and that  counsel be given a chance to respond and i believe that notifying former counsel that a complaint is going to be filed would allow former counsel to respond notwithstanding the fact that he may be notified by believe the technical requirements were not adhered to strictly the board just shuts them off and to me it seems as though he had to say this but it's a lot of make work requirement that really doesn't have a lot of substantive doesn't substantively to the case when there when the cases could be easily resolved on the national or case exactly as you described where we're counsels and puts important if there's a disagreement about what to do but there are other cases that we see in this this may or may not be one of to whatever degree even to those are all issues that could be aired in that process so i think that that shows that the process is important because then you might not get to questions of us standing before you trying to analyze whether or not former counsel is reasonable in pursuing one possible that perhaps former counsel thought that the finding was proper i mean under under the cases that i found and under the law as i've analyzed it which i can discussed in minute aggravated felony issue but it seems clear that the conviction under the nevada statute does qualify as negative felony and it's possible that the former counsel saw that number one and number two you thought that the withholding removal claim had enough merit that aggravated felony issue because i know the court is interested in asking questions and as just pious pointed out it is modified categorical approach and there are documents in the record that clearly indicate that this is a crime of violence count one of the complaint states that it is not i did willfully call her stepson to suffer unjustifiable pain by kicking and pulling on him and holding a knife to this right now i find it hard to to figure out how this does not qualify under actually convicted under the first section of the statue the complaint draw a distinction between county subsection a and subsection b i'm not positive that your honor but i believe that somewhere in the conviction well i would agree that it does contain that language placed into it in a situation however i guessed and problem with wrapping in the past well i guess in responding to your previous question what was my best argument the fact that count one contains parts but i don't have a case with regard to the specific facts i don't think that there's one specifically on point as to the language of the count what the language of the count has to indicate any further questions looking to categorized the results of what the criminal act produced in matters tweeds to we had a child who died in a bath tub because produce such results so if the state courts sort of reasonable to give petitioner a single year rather than the mandatory two for producing detrimental  harm certainly the attorney general at this point the department of homeland security can't question that there is no deference afforded to the attorney general the department of justice or the department of what she pled to and as to what she was convicted of actually did make a statement she made a written statement right yes but that's not part of the record a conviction these are factual four and it makes no reference to either section of advice statutes none at all i'd like to close with one thought to address one final concern which is a powerful one  council for aliens in the movie proceedings will oftentimes concede charges to go after release the question is what kind of relief that's what makes it a logical decision to  there's forms or relief available to aliens such as cancellation to remove all or the former to twelve of these that survived thanks here where you have a very good handle that your client is likely to win unless they say something absolutely looking at these conviction documents to do that were added and to and to pursue withholding a removal rather than to insist on appeal and all the way through all of the little proceedings that she's