that she make restitution prior to sentencing no your honor i agree with you that the records are not very clear however i can tell you that the restitution was paid before she was sentenced and the m t a all the documents had not been there because the record wasn't all there the criminal record had been going to be put at the proceedings had not finished at that time and that's why we don't have all the records  a couple of couple of reasons that i was going to bring to your attention today your honor as i mentioned before that the aggravated felony section requires not only of fraud and deceit but also requires a loss of ten thousand dollars and simply fraud and deceit is not enough based on the plain language of the statute a totally separate section of the aggravated felony makes an attempted fraud an aggravated felony that section you and  fraud under section and were last victim exceeded ten thousand dollars the board's decision is illegal and it should be reversed for two million reasons number one it's found my client removeable on the ground that he was not even charged with he was i mean the board in the decision said that there's no requirement under section am for davy even the last victim which is clearly contrary to the language of the statute attempted fraud offense is an aggravated felony but that's under a totally separate section of the law totally totally separate section so it's a due process violation it's ultra vires board does not have the authority to do so and your honor it's a it's an did they found my client a portable on the ground that she was not even charged with and your honor the the supreme court has held that this court or or any court for that matter does not where they said that you can only affirm or deny the case based on the grounds cited by the board or the administrative agency and there are twenty eight year letter the government also  my client was not required to file a motion to reopen because that's not a remedy as of right and that this court has said it in several decisions that it's not we would not require father motion to reopen to bring that to the board's attention  as i mentioned before the board was required to clearly to find whether the last victim exceeded ten thousand dollars in this case and we believe that it's the actual and the not intended lost that determines whether somebody is deportable on the ground honor is different however your honor i suppose if somebody defrauded a bank and after they were charged or even before they were charged with a with the offense of fraud image vast amount of restitution was already benchmark because we're not it's not a sentencing issue it's a question of what you think convicted of so let's say you're convicted of tax for tax fraud or you're convicted of grand theft because of the amount doesn't somehow turn into petty theft because you paid the money back aren't you still convicted of grand theft yes your honor that's correct however your honor in this case the issue is what is the last of the victims the issue is not what she was found guilty office what's the loss to the victim for four for the section four from your argument it seems to me there with she paid it back a year later two years later three years later he would convert this felony in to something different to the crew no your honor no your honor i just want to we're talking about whether or not it's a crime and suppose supposed she committed the crime she took over ten thousand dollars away but she pays him back before she gets charged can he still charge here on the crime even though she's paid the money back honor they can it can it can so it has nothing to do with the crime itself i don't see the distinction between paying it before she's charged and paying it back after she's charged as to how the crime itself  changes your honor the distinction comes into play for example a sentence in immigration contacts that that is reduced from a one year sentence to three hundred sixty four days determines modified sentence crime but if you pay it back after you're charged it does change the crime not the sentence i'm talking about the crime your honor it doesn't change the crime as i mentioned before that she could still be charged with with the same crime even if she had paid restitution before she was charged with a crime what you're really talking about is something that happens  is that she was sentenced in september thirtieth to one year on record at one seventy five and then after she made restitution maybe she made a motion for resentencing and her six hundred dollars an amount well below the statutory threshold but was ordered to pay restitution above the statutory threshold like twenty six thousand dollars the ins said that she was deportable was an aggravated felon chaining had pled guilty to a fraud offense involving only six hundred dollars so that she was not an aggravated felony and i think change instructive here because it focuses on what the defendant pled guilty to as opposed to  the criminal conduct which she pled guilty to and you can look at the decision it's clearly states in fact the board's decision stays at the very end that they're not even the last a victim for somebody to be found guilty of an aggravated felony under this section therefore i believe it remain as appropriate in this case for the board to as as it is then that someone who was charged with fraud but there was no loss to victims at all which is another case that the board can come up and say well it doesn't need to be a loss and number two this this