good morning it may please the court john burning for the petitioner chung to who who is here in the courtroom with his family today this case can be boiled down to one simple question under ordinary rules of statutory interpretation can a single word one element in a federal generic definition of a criminal offense mean two different mutually exclusive things where your brief starts there but i start with jurisdiction i start with tom i'm not as as a as construed then bank this edition of this court saying we have no jurisdiction to review under the discretion agency discretion committed by law yes your honor even if you can't get around that work will never reach s the agency in this case is not reach the issue the discretionary determination regarding sue a sponsor the reopening or whether or not so reopen instead the agency looks soley at the core legal issue in this case that that's that squarely rejected that at that reasoning is squarely rejected in how we are and which said that the the fund the fundamental fundamental change in the law is no different than extraordinary circumstances law and it was also clear in that case between the agency decision and this court's determination that the outcome would not change regardless of whether the the agency found a fundamental change in law or not more importantly the agency in this case did not reach the core question again of whether this is a fundamental change in the law simply put the agency only only reached the question of whether or not the supreme court's decision applied to mr statute of conviction to perform that sole legal analysis before getting to the question of whether this is a fundamental change in law i j squarely said it was not a fundamental  premised upon an incorrect incorrect legal promise could still be reviewed but let me ask you this is it really a fundamental change of the law and the reason why i'm asking that is it's a fundamental change in the law for statutory rape offenses perhaps but i solicitation with with what the with the statutory rape considered and as we've all so when you say the th circuit is gone has taken it much further i don't understand why why and how the physical recognize is precisely looking at indistinguishably tweens such to rape offenses that are based soley on the age and those offenses that are based on relationship of trust or a special relationship or where there is an age distinction has very much to crimes you know i i think there's some merit to that i don't know how it comes out for individual crimes but the problem i'm having is that you didn't do the analysis that they did in this quibble case right you didn't go in and do justice thomas as an appendix that with a fifty state survey plus looking at comparable federal crimes i don't see that argument being made i don't see any evidence of what the generic offense says and so that's the problem having with your argument right and once we get past especially great contacts the difficulty with that type of analysis is that it's really all over the map so there's any number of other offenses that can be considered as consider just sexual abuse of a minor that is indecent exposure lewd acts on a number of things that are both both involve would ordinarily be consensual and what would ordinarily not be consensual but for but for the age of the victim so it is really really difficult to look at even within minnesota law of how that all these different acts are criminalized without going to all fifty states so i again i think this wells down to what how the statute must be constructed under the categorical approach and under generic definition but there are practically there is not one and so that leaves us in a little between a rock and a hard place where the statue must be such a conviction must be compared to a generic federal funds but there is no there isn't one  posture here so we're talking about a fundamental change in the law and i can understand if you're making that argument of those brought within ninety days and you are asking us to you know to sort of reopen it fifteen years later but you think the procedural posture would allow that kind of unanimous and bank right but i do think that that other circuits don't i don't like what where that leads them is irrelevant i don't see the panel i don't think that we need to get back to tam and out here i think that this panel can go back  and revisit us in light of that intervening supreme court authority alternatively if it is necessary to go to an on bank panel then that's that's where we need to go in order to address that however i do think that that there was denied the motion to reopen as untimely that includes incorporates an analysis of equitable tolling if argued if not argued it was forfeited particularly when it good morning your owners may please the court i'm erica miles for the attorney general as this court recognizes you have governing precedent that squarely controls this court's jurisdiction in this case and jurisdiction is extremely rule but not the finot of lee deciding that is that your reading of the precedent or am i misreading and my reading of the president is that it does definitively say that an allegation of a fundamental change in law which is exactly these jurisdictional hurdles in his opening brief he only addressed them in his reply brief and that is too late he has waived any argument that that this court this panel should carve out some sort of legal exception beyond what you know  footnote you know that there is a circuit split as to whether or not the court can carve out an exception for if the board was under a faulty legal promise he did not argued that before this court we didn't prefer that he didn't talk about all the cases that whether there's a circuit split or identify how this is different from the bra hospitalist fundamental change in law which is not a faulty legal primacy so it this is not the case to take up whether or not to carve out an exception because he didn't present it we presented the jurisdiction on hurdles in our brief to let you know that what's in front of you is extremely limited it's not how he presented it in his br whether or not the board provided a rational and reasonable explanation for denying reconsideration and counsel petitioner did not make an argument that the board abused its discretion by not board for the reasons we already denied it we deny reconsideration and then the board addressed the cases he presented finding this doesn't change the outcome because those cases don't stand for the proposition that you're saying yet again this court would review it but it shouldn't because he didn't argue it the board absolutely did not abuse its discussion in denying reconsideration and the court is barred from under it fast under standards i don't under sexual abuse of a minor type of umbrella and for those reasons we don't have i judge strasse mentioned a concern about the definition of minor as an element and hear the birds longstanding president excuse me has banned under eighteen for the definition of minor and that in the united states most people understand that in most applications the definition of minors under eighteen but i don't disagree but but i mean you know that there was a showing here a fifty state surveyor that you know there wasn't the same thing that happened as quibble breyer but on the other hand to the extent you're talking about the meaning of minor we read that you know read the read language the same way in different cases and so at least it at least raises a prospect that been criminalized in the united states but it expressively did not go beyond that narrow finding it didn't even address the question of whether or not there needs to be an age difference at left that for another day and it  another day whether or not a special relationship pointed out could then bring back in with seventeen year olds and sixteen year olds into the sexual abuse of a minor category  did not find the element minor to be begged at all it just said the fifty five state survey informs us that we have clarity what congress meant for statutory rape offenses and that  this really is the chevron deference question because the courts recognize that sexual abuse of a minor that term is generally speaking is not defined it's an ambiguous phrase in a bernard that's it has the agency to if the court doesn't have any further questions i'll just see my time very good thank you waived by the petitioner is not a role it is not an argument that the bars any type of relief in this case other types of legal arguments certainly can go away i think the question raised is whether jurisdictional arguments arguments to to expand the jurisdiction that otherwise seems to be foreclosed can be waived that's a little trickier it isn't and that's something that's i don't i mean you know general proposition you just recited i think it's clear you have with that is is that the opinion itself recognise that it's possible if you have a special relationship and so that's you know that's the problem i have with the other side of the argument is that there can be different ages even according to the  of the opinion itself if i may respond to it so the supreme court i think i think it's more to clarify the supreme court doesn't say there is a different a different definition for my or in these cases it simply says that this may be an exception to that rule that's an exception that the th circuit found in thomson v bar finding no special relationship or custodial relationship with the child but it's not something that the supreme court address one way or another and i think that was left the supreme court left that for other cour