years and his removal would present a substantial hardship to his elderly mother he therefore sa cancellation of removal and in doing so submitted letters from numerous individuals attesting to his good moral character near the immigration judge where the board of immigration appeal however gave way to that evidence holding instead that the his history of incarceration conclusively rendered him ineligible for relief but that determination rests on legal errors and should be vacated at the very least remain for further explanation is required and that is so because bravo coco clearly argued in his submission to the b ira that one of his california convictions should not be counted for these purposes but the board completely ignored that argument under this court's precedents that alone is enough to require a remained but this court should also address a more fundamental error in the board's decision when they can have an impact on many cases namely the board's conclusion that bravo coco had the burden to prove that he had not been confined for one specified in the statute at twelve eight u s c twelve twenty nine a sense that he has quote the burden of proof to establish that the alien satisfies the applicable eligibility requirements so that what he has the burden on is the eligibility requirements and one of the  ibility requirements here is to show quote that he has been a person of good moral character during the past ten years but the organ here is that is that that burden to prove that he does have good moral character is not  by a preponderance of the evidence that such grounds do not apply yes or i guess they're in three points to make about that provision one is that it applies to a sort of broader range of types of determinations and what is specifically at issue in this case the second as we know in our replies that that regulation is actually long predated the the statutory revisions to the i n a that speak directly to burden of proof but then the sort of final point and  is our main one is that on our reading of the statute that just is not a reasonable interpretation of the statutory scheme that that the board is entitle to adopt was that council i get your point but  where does the burden fall on the government to disprove certain things you're your client has to show why he's titled to relief basically and there are certain elements of relief as my colleague has pointed out one of those is to show that he's a good moral character one element of that is that he has not been incarcerated for more than one hundred eighty days how does he not have the burden i think to dispute the characterization of that honor as one of the elements of a good moral character i think it is better conceived and i think this is the best way to sort of understand our argument here is that those disqualifying circumstances are our best conceived of as affirmative defenses that defeat anything that might otherwise be perfectly valid showing of but moral care for the council if you have the burden to show that your client has good moral character and one of those elements to make that showing is that you've not been incarcerated for more than hundred eighty days how can  be otherwise then that your client has that burden it's an element is it not know i don't know i would do them all character right i don't i don't think it's an element i mean for one why not well this for one thing the statute does not does not define good moral character as it is the existence or nonexistence of this that or the other those disqualifying circumstances are circumstances which if shown that preclude the agency from finding or regarding someone as good moral character but they're not the statute doesn't set them out as being the essence of good moral character and i don't i don't think they sort of naturally are to are the facts here in dispute on the hundred eighty days or just the legal question of what effect should be given to expunge mincer things like that and if it's just the latter it doesn't matter who has the burden of proof right if if the issue do you dispute them as because of questions of law like whether expungement should matter whether pre conviction incarceration should matter because those are questions of the law not really questions about what happened in the world that's right your hon i think the point of i and i understand the question sort of what what difference does it make and i think here i would stress very heavily that the chancery principle the notion that the agencies decision has to be upheld if at all based on the rationale the agency gave and i think it's important that here the agency framed its decision in terms of whether he had met his burden of proof so i think if this court were to agree with us that that the agency was wrong about the nature of where the burden is the not alone would justify a remain for reconsideration and that it would just be futile right and why would we do that if it's really clear that it doesn't make any difference well i'm not sure that is so clear i mean this is not a case where the where the agent agency treated it as though it mattered to its thinking and so i think especially again given as we have a another argument why there needs to be remain anyways i think it would be valuable for this court to address that issue and let the  agency address it in the first instance and it may well be that the agency thinks it comes to the same conclusion but we still think a remained is in let's let's assume argue window that your client is the burden of proof speak to us about one hundred eighty days i know you take certain positions as to why you think he was not incarcerated hundred eighty days including the expungement issue we address that please i'm sorry i'm not sure why you claim your client has not served one hundred eighty picture rationed based on certain things that you've alleged such as that basically the things that occurred before he was convicted don't count for example but that's sort of an argument you have any argument that you want to make about whether a hundred and eighty days was served assuming for a moment that your client has the burden to show that he's of good moral character and that the incarceration issue in the burden of proof  goes against you not apart from the arguments we make in our broken so did we should just rely on your brief then yes or ok maybe i'll briefly turn to that second issue about the you want to save any periods of confinement which precluded mr bravos mr brother copas out ability for cancellation of removal and controlling case law and relevant regulations up for close mr bravo coco's arguments supporting his eligibility for relief accordingly substantial evidence supports the agency's denial of his application for cancellation of removal on account of at minimum his one hundred eighty three days and as a result of its criminal convictions as an initial matter the government's position remains as described in the answering brief that this court does lecture stiction to review certain issues presented in the opening brief that were not exhausted before the board despite the liberal construction for interpretation afforded to pro se petitioners however even assuming does not makes logical sense for the petitioner to have to prove good moral character but not prove that the those bars do not apply to him one example would be the persecutor bar in which the asylum applicant must prove that he is not barred by that particular regulation the regulation that your honour's have described as squarely on point that states under eight c f r twelve forty eight that if evidence indicates that one or more of the grounds of mandatory denial of the application for relief may apply the alien shall have the burden of proof by preponderance of the evidence that such grounds do not apply and in this case the record has raised numerous red flags as evidence by the events or as discussed by the ija unsee leading the agency to believe that those grounds apply and that he is barred from cancellation so i don't understand your jurisdictional bar argument with respect to the burden of proof that the b o h specifically made a finding that the burning was on him that the so you're saying we can't review that if he had not specifically in advance challenge that no your honor my argument is that the board generally does discuss the overall statutory scheme before going into an analysis of the case and reviewing it for reviewing the id's decision for clear air but there was no specific challenge as to the allocation of the burden so in the appeal brief that mr bravo coco submitted he did not challenge the fact that he himself bore that burden and thus the board did not have an opportunity to address exactly why mr bravo cocoa how that burden as opposed to these of government but the  it wasn't challenge below you're saying we say ok the guy goes to jail preponderance is enough because he didn't challenge that can't be right can i think that in this particular scenario however there is general challenges to the topic and more specific challenges and the board was not put on notice that this was going to be the specific challenge at issue because it does implicate regulations and statutes and interpretations of those regulations that the board should have the first instance of of reviewing and for the petitioner to not explain what that specific error or was the board and no longer has the ability to correct it so if there was a specific issue regarding that general statement about the burden of proof the board has no reason to know that there is an issue with the first proof the board is simply meeting its is laying out  it is as your honour's pointed out earlier however moot because the poor the burden of proof here is not the real issue the real issue is that there is very clear cut evidence that he has been in confinement and does  not have good moral character and there is a specific case law on point regarding all the other challenges that petitioner makes so while the government would like to preserve the fact that the arguments in  brief are remain the same that we do feel that these issues have not been exhausted we did discuss the alternative issues you know you would you characterize that as the board just laying out the general standards but i think the board did more than that because the board says that he did not meet his burden i mean it's not like they laid out a general standard of review section and then moved on they use that in deciding this case that's correct or honor and you know brief we did in an abundance of caution discuss the merits of the burden of proof and discuss the fact that there are statutes and regulations and congressional intent as to who bears the burden so in this case it is not the central issue but i do understand your honour's argument  however again as a general matter the board cannot correct errors that it does not know exist or being challenge and so in this case think there are no errors before to correct because the burden of proof remains with the petition r and i was correctly assessed in this case in regards to the expungement issue just briefly although the board doesn't address expungement and thus this court should not review that issue though just the government's position in its briefer means the same that the appeal brief simply says the words this was dismissed in regards to convictions on that mr rather coco was convicted of however this was dismissed again is not specific enough for the board to know that california penal code twelve a three point four specifically implicated in any challenge in fact this was dismissed is are three words that were used to describe multiple convictions in the appeal brief to the board and thus the board had no idea that this was going to be an issue unless this court should not review that issue but regardless assuming exhaustion of that issue the government's position remains as discus it and we have jurisdiction over this case no matter what the it's it's a question of whether a particular argument can't be raised now because it was not raised below and that's really an issue waiver even though some of the case last says its jurisdiction is not really jurisdiction osip well i i guess i would submit that they both go hand in hand if the petitioner has waived well i petitioner has discussed an issue to the board and thus it is exhausted before the board but he has not brought up that issue in his opening brief then that issue has been waived i think that's separate from an issue that w yes with respect to the confinement time pre conviction again this was addressed in the government's brief that if you are credited for pretty time for pretty detention it's categorized as time served then it counts as confinement within the meaning of eleven o seven f seven which is the good moral character provision and that is discussed in a reagan merino the mackenzie again at the this case just to some even the given the most generous benefit of the doubt regarding both the time spent in confinement in the issues exhausted before the board is a petition for of you should be dismissed because mr bravo coco simply did not meet his burden of proof issue here and that is enough under this court's precedents to him to exhaust the issue but even if the if the court thinks that there is great they were the value in that the i a e a addressing the particular arguments in our brief in the nuances of federal jurisdictional lud but bob shocked yeah i think his lack of familiarity or you know expertise in the english language and was one such barrier but even so i think he did clearly did enough to exhaust the issue of expungement he clearly argued that his criminal history did not bar him from cancellation of removal and then he walked through his various convictions sort of annotating in explaining why various ones should not count and with respect to the conviction at issue here period seems to me those are directly on point in the foreclosure clients argument do they not i don't i i can see that with respect to the pre conviction incarceration yes that that case is squarely on point it could only be  ruminative castro with respect to the effect of expungement on federal laws counting of that time right i don't think that cases directly controlling i understand why it helps it might seem to help the government more than ask you'd rather have it than the government have it right us or do you wish it were your way i do but i think it does address a different issue and just i'm thinking over time but if i have very briefly i think the distinction is that if that is the case that deals with a particular ion a provision that criminalize a particular type of conduct and for the reasons we explain in our brief this provision is a different sort of conversation and questions by my colleagues thanks to both counsel and again thank you for your efforts as a pro bono we are really appreciate the efforts of the bar in representing the many people who desperately need that help you know this area of law so thank you both the case just argued