language of the case and the subsequent treatment by other panels i'm not the position of the government is that somehow the ruling there is different and that's simply not the case i mean that the language of the statute states we are addressing an issue of first impression engaged in statutory construction they looked at the various strands of the statutes and announced the new rule and stated that a waiver does exist in the context of cancellation  what they said was we are construing this statute did the only issue before the court in iran was whether it was the military that waiver in the context of cancellation removal was highly collateral to the case i mean the classic gift is where in cancellation references the language of inadmissibility quite literally that's actually cancelled rules called cancellation removal and adjustment of status it's not an unreasonable thing for the moran panel to find much as they did that when one is problem determining the meaning and purport of the miranda they remanded the case i'd cite another unpublished case karela strada two thousand and seven us lexis two three five five four again it was a paragraph and a half the panel had no problem stating unfortunately the you know that the court below didn't have the benefit of moran's and they simply remanded so our position is moran is solid black letter law they stated that we are conflating the grounds of the waiver for inadmissibility in the context of cancellation removal and they did that and i out of thin air by specific statutory construction the cancellation statute doesn't remove ability it's called cancellation removal and adjustment of status that's of completely reasonable interpretation that when one is seeking cancellation removal one of the simulator into the position of entry one of the tempting to i don't understand why you're taking the hard road on this why isn't it if i understand this problem is ten years old over ten years old why did why do we need to get tomorrow and why don't you when on the basis of the ten year  from a nation well the determination of the judge was that if you smuggle if you're guilty of alien smuggling you simply cannot meet the good moral character requirements and you are barred it's  it's not within the ten years it's you are forever mark you cannot demonstrate good moral character or even if it's twenty years earlier thirty miles is sure i guess that there's that although i'm not sure that was our facts because  regulation wasn't specific if you look at the violation of good moral character and there's a ten year limitation why wouldn't that whole why why do we have to say that because bailey and smuggling with me so close a little problem because i'm not sure i see the problem that you see but that's right it's your problem you lose the case of the problems they're assuming there's no problem what i want to find out is why wouldn't the ten years be sufficient if you're dealing with good absolutely correct rajan if it's outside of the ten years for which you much demonstrate good moral character then the allium would be eligible for cancellation removal notwithstanding anybody's feelings on miranda why isn't that an easier case for you i don't know why your argu which is a which is a difficult case for any of us to work with because on the date of the hearing the alien smuggling issue did occur within the ten years for which you had to set the relevant data and well i guess it is complicated because you know his contention is that his initial entry was many years earlier in one nine hundred eighty eight so certainly no but i think the question here is whether the ten years extends to the final acts beyond the ten year period looking backward from the date of the final the magistrate decision that would be the be i'd not will not under morning your honour's american miles from the united states attorney general before delving into the merits of any of these issues the government would like to point out the jurisdictional issues here and that the question that the court has just been raising was not exhausted before the agency this issue of the time period during which good moral character should be running additionally the issue of who we should if that is the determinative dispositive issue in this court's mind then it should be remanded for the board to determine in the first instance of the government contends that that's not the case it wasn't exhausted so he has waived  he's waived review of that issue and additionally he did not exhaust his argument that this two twelve eleven waiver was a political he never raised that to the board he never sought or sought to applies for this waiver he only challenge whether or not he lacked good moral character based on his conduct even though the moran decision came out after the board's decision there was no other  open issue and needed to be raised to the board for the board to consider in the first instance because it was not only the right we have to remain excuse me so  however if if the court determined sir this is an issue it may review the government contends that eight to twelve eleven waiver of inadmissibility is not only in a pluggable in the context of cancellation  good moral character based on his conduct whether and that and the provision of want to one f three which defines that he shall not be considered to have good moral character so whether  bothering me counsel that is all in the definition of good moral character for inadmissibility if you look at the definitions section for good moral character yes it sends you to that definition because that's the only definition of good moral character there is is for inadmissibility so therefore don't you wind up saying that good moral character in the cancellation did not consider in that it's not it's not the inadmissibility that's a part of it is that it's just the conduct it's the described in conduct and as you pointed out in the definition while a cross references you to the provision there are other ways of finding lack of good moral character and there's a catch all for just fashion ery that doesn't cross reference you anywhere that leaves an open determination for lack of good moral character so it's using these other provisions that have conduct described in as a guiding principle and those are those are statutory preclusion good moral character but there is this catch all phrase for you can come up with the immigration judge and the fact finder can come up with other reasons for finding lack of good moral character that aren't defined specifically based on the sparkling excuse me i  on the smuggling was so not that it was based on it was based on the conduct described in the smuggling provision in admissibility provision but again we have a very big distinction here because so you want us to base it on some other provision no no i want what the what the government is arguing is that while the waiver applies to technically waive the status of inadmissibility it does not waive the conduct of the lack of good moral character and the distinction here is a look at adjustment of status if you look at the two forms of relief we have here if you have a person who is applying for adjustment of status under section two forty five based on as as even described in the two twelve eleven do you waiver based on a relative relationship you have a sponsoring relative here in the united states the persons applying for adjustment this waiver would be wholly  useful because you need to be admissible to qualify for adjustment of status and under that provision there is no good moral character requirement so it's holy it's wholly useful in that context however when you look at a of status in the context of cancellation of removal the only requirement for adjusting your status is meeting the statutory requirements under cancellation of removal be sure i understand you saying that there's no good moral character requirement resection to forty five adjustment of status no it's a discretionary provision that and that's the type of adjustment of status that's the language included in the two twelve eleven waiver that it's talking about it's a plug a bill in the plain language in the context of adjusting under cancellation of removal because as miss ability is a non issue it doesn't matter it's the conduct where you find lack of good moral character and while this waiver technical status of inadmissibility which is helpful for a relative based section two forty five adjustment it doesn't waive the conduct of lacking of good moral character for purposes good moral character so this is a distinguishing issue before the court that this war could decide on almost all to play hard time following your argument when with regard to  it says described and if you look at what no one asked three it even has the phrase whether you need to civil or not if you are a person in this class of individuals in this smuggling no they did not this issue was not presented before the i j or the b yeah you were going to go around this hoop again but let me ask you one more question with regard to this petition or certainly the  it's pretty hard to say that he should have exhausted that issue before the d i m a in his original appeal are you saying that he should have exhausted it by petition for we opening after the decision came down or and and then appeal on the question just of whether or not in their discretion they should have reopened that doesn't that doesn't make a lot of that is that that is one avenue however for reading we have any law that says that you have to do this situation i have not looked into that now because b i a lot of the ten to ten year period that you would apply for whether or not they've maintain continuous residence is the exact ten year period you should be applying in determining the period for good moral character and his conduct out correct but he did know at the time that he felt it to just an before this court and he had an opportunity to raise it in his opening brief and in a reply brief to this court and he's never raised that issue so it should be waived before this court right now in the context of this case ok thank you thank you you should have known at the time you filed briefs and it isn't waiver below is waiver to this court right what's your response to that that this is a reviewing court i can bring up issues that were not i mean that were not addressed by the board i mean this the sole issue was good moral character visa v l a n smuggling not the passage of time but in retrospect i should have but i don't i mean this is a riveting court that would have been essentially new evidence and the other exhaustion point i'd like to make i don't believe i had to be  and did not exist at the time of the da and so i've made other arguments and i do believe our case law does not require i mean if there is subsequent case law that is truly a case of first impression i haven't waved it when that case was not published at the time of my brief before the b s a i don't believe that the exhaustion requirement i mean moran specifically said that in the case of first impression that there was nothing in the legal landscape viz a viz moran at the time i wrote that to be a case was decided so i don't that you certainly knew about the tenure waiver it's in the statute and that you should have briefed it to us and having not done that it's way i just answer that specific question right and i tried to earlier in that that since the ten years i did the the alien smuggling occurred in august of ninety three the b i decision was in two thousand and four at that point ten years passed however at the time i wrote my brief the ten years hadn't occurred so i didn't have that issue before me before the board so that was an issue for me as a reviewing court that issue was simply not before the court would have been perhaps appropriate for a motion to reopen and in retrospect may have coppa i should have done that but i don't believe it was before it was not part of the record