the court there are three independent reasons why my client should be released from deportation in this case the first is that the government failed to prove quite clear convincing and the only evidence that the government minister at the immigration hearing to prove that mr alvarez was convicted of a firearms offense was the abstract judgment for me the information abstract of judgment states that alvarez was convicted of section two forty five eighty one of the california penal code would your position be that we can we consider both documents i mean i realize that they announced under the well let's go to a more fundamental jurist ok problem and that is has there been a waiver of this issue by virtue of the fact that it wasn't raised before the b i i don't believe there has been a waiver your is i read the transcript of the immigration judge proceeding and i saw him you were not representing that that's correct so we can blame it on the missing one here when essentially the evidence came in without any objection at  all by counsel who basically acknowledged that it dealt with his client but beyond that raised no objection that's correct and that goes to our second point about the the ineffective assistance of counsel but more we get to before we get  view with the state of the record where an exhibit is offered into evidence at that point if the defendant or in this me that the alien has a challenge to the sufficiency of the evidence don't we normally expect  that's correct so if we take the evidence as it was submitted to the court it it states that he was convicted of two forty five a one and it also state so you've got those two competing things because if you have a finding in the face of violence you know objection immigration judge says i find that you committed an offense involving a firearm and on that basis i find that you are  thoughts right because he was found guilty by jury trial that's right your honor and stepping back to the to the categorical approach of this court takes it looks only at the statutory language of the prior offense where the statutory language of the prior offense in this case you want to jump to the to the categorical approach but we're we don't get to the categorical approach unless the issue is properly ra and has not been and has been properly lost and the problem i'm having even hearing the argument is that i don't know if we have jurisdiction to hear the claim well of complete silence let me address that your honor because i believe that the b s a opinion did address this issue and in fact what it did the b s a opinion concluded that alvarez was convicted of section two forty five eighty two which is what the immigration of two forty five point one as alleged in order to show cause the order to show cause does not allege a violation of two forty five eighty two alleges a violation of two forty five  from the outset the only thing that was alleged by the government was a violation of two forty five one and that the immigration judge concluded that that allegation had been proven to be i also reviewed that evidence and switched gears it concluded that it wasn't induction of two forty five a one it was a conviction of two forty five eighty two which is what he was charged with and here for mason as we now know because we have the proceed that's correct and we're reviewing here yes so how is he prejudice well but the it's not right and violated where there where the evidence shows that that was what he was charged with but it doesn't show that's what he was convicted that's the difference because two forty eight and one is a lesser included offense up to forty five eighty two and i'm still i'm hung up on the procedural posture that we're in in the face of a  development of the record that never happened in this case and that's what leads into our second point which is that the counsel that alvarez had never raised this issue which directly led to the judge's conclusion that the allegations of the order to show cause have been proven again and now we've got another failure to exhaust problem you didn't comply with matter of well thought out we don't know what his trial lawyer was thinking when he failed to have jack write might have been because he didn't have any defense to do to the fact that he had in fact been committed if you are convicted if you for well we don't know and and the problem is was a problem and actually corrected the immigration judge if found it now look this is a violation of section eight hill but it never stated what evidence it relied upon to reach that conclusion because it must have been effectiveness when that's not the only explanation that might attend here i'm saying that where the ineffective assistance of counsel is planing from there if the administrative record which i think it is here because