that's a different that's a different argument yes and that is ok so if you would have lost my colleagues have different questions i'd appreciate your addressing the issue that if you that arguing that even though he was convicted for fraud offense because he was just in possession of the california's driver's license he was not convicted of a crime of moral turpitude in following the same line of analysis that because this out you can cover more conduct that the generic  generic federal definition except the text of the statute requires that fully possession be with the intent to have the license or card used to facilitate the commission of a forgery not just that you happen to have it in your wallet so why doesn't that answer your argu only argument is that the california statute doesn't have the same elements that would make it a crime of moral necessarily make it a crime the forgery moral turpitude client crime that's been interpreted under the federal specific crime was found not to be a crime of moral turpitude then he would just be left with the four seventy b that would become a non issue under the petty offenses exception and but i understand the court's position that i hadn't brought  seems like and i want to clarify for me if you could that there never there had not been petition filed by the when the i j a made that decision or even a year later so i was just trying to figure out why you thought the i j a abused its discretion and a nine year continue at the time because we demonstrated the hardship the family was going to and there is clear there's clear relief for this family unfortunately because of the hardship that children and the spouse are going through it's difficult for them monetarily and to even to leave the country for a couple months to a year for waivers to get approved the law has changed at this at this point where we can do the i think so one a within provision a waiver within the country so petitioners departure would be just a couple of weeks but at this point because of the hardship the family is going through even that approved for the family to proceed with their case and avoid the twelve removal waiver of service at which time was the petition filed it was filed after the judge's order that i correct after the b i l s order it was pending during the b i order so we didn't have an approval we submitted just the fact that it was spending and it was approved post  ok i thought that b i had mentioned that as of the time they issued their decision it had still not been filed in my wrong and that was over a year later that's my understanding too are you saying the decision had been filed prior to the point but in terms of addressing your honour's question in regard to a continuance it was based the views of discretion argument was based on the fact that we presented arguments that they were  trying to get the funds to file this petition and and we asked for one short continues to do so unfortunately i understand how it may seem that even if she had granted the the continuance it hadn't been filed to your leader but that comes with a lot of other expenses in addition to tourney fees and no appeal  my name is one think one hour and i represent the government this petition for review should be denied in part and dismissed in part for two primary reasons first the agency properly concluded that mr libby on how is an eligible for cancellation of removal and voluntary departure because his conviction for forgery i'm sorry for possession of a forged document with intent to commit forgery is a crime involving moral turpitude and his petty has that conviction does not qualify for the petty offense exception as this and it's just it would be pointless unfortunately because he does not meet the basic requirement for adjustment of status so if he were to be gramp to voluntary departure what would happen then with and then he could apply to consul process there which he could also do even with an order from ability and and he would just have to seek certain waivers i believe in the country right so i guess i'm wondering why that couldn't be part of  discussion i mean if the government doesn't want to do it that's fine but i just just saying that he can't do it in the united states doesn't seem like a complete answer to the possibility of a negotiated resolution also has different hurdles for an unlawful presence waiver which is used for consul processing because for that waiver he has to be otherwise admissible and he has to c m t connections but what year was the conviction so are you saying that he has to leave the united states in order to seek any legal permission to come back right so what he would do is he applied for an immigrant visa outside of the country and danced on his citizen wife cracked and just to go back to a point that she just found so raise in terms of when i went thirty was filed in preparation for argument i contacted says and i want thirty was not filed until twenty fourteen so that was years after the board decision in this case and years after the immigration judges decision it was granted you know fairly quickly because she she was the united states at us and they did find him island thirty but unfortunately i went thirty doesn't give him any sort of relief to remain in the country there is he has to qualify either for adjustment of status by remaining in the country or he has to counsel process so you say he's not eligible for voluntary departure but if this case were mediated is that something that the government could nevertheless agree to even if they can't agree to any type of adjustment while he remains in the united states unfortunately the department of we can not grant him balder parts of the case would have to be reminded to the immigration to the immigration judge for consideration of his all to build a for voluntary departure i've reminded several cases in the past and i've never really made it a case for just for the crew for the judge to reassess eligibility for voluntary departure when at the time immigration judge decided this year he was not eligible for that relief so the immigration document had been altered in this case we have much more than that we have not only did did mr libby i know have to know that he he possessed a forged driver's license and that the driver's license was forged but he also had to possess it with the the specific intent required for seventy b that we have here and that intent is is really what makes this offense a c m t that's as the board explained in matter of jimenez and criminal possession of forge sorry it's very similar to how this this court views burglary or offenses you know breaking and entering in of itself is not a c m t but when coupled with the intent to commit larceny that is what makes that you know i was surprised to get councils when it's a letter last actually this morning raising this issue for the first time because as you identified this they've always conceded that forty four is a c m t this court has at least three published cases holding that forty an aggravated felony case and the generic definitions for aggravated felony forgery i was going to safe after forgery and c m t the generic definition for c m t forgery are very different so the fact that citizen that was something that was never presented before the board and that's the board didn't have the opportunity to take that factor into consideration in in assessing whether a continuance was warranted and and the government believes that the agency did act within their discretion in denying the continuance because of the fact that at the time the continuance was requested that i went thirty had not been filed and as we now know it wasn't filed until many years after the immigration  presence waiver if that was approved if he he'd still have to leave for some time to for his case to be adjudicated or he wouldn't have to apply for the more stricter i two twelve which is the waiver for remove ability at the same time we make the argument that we're making now that he is unmissable because he doesn't have two crimes of moral turpitude so he would be eligible to have to concert process they what the institute it was in analyzing at that crime the court established that by dick cons and rand on that california this particular california state that addressing the aggravated felony could i get back to the potential of mediation for government because you mentioned when you first began arguing the hardship of your client having to leave the united states for any period of time and what the government was suggesting was that under the circumstances your client would have to leave the united states and apply through the consul process in mexico was very different the we didn't have the ability to submit i to twelve waivers under excuse me under the new regulations which would which would which would address his remove ability inside the united states before leaving which w have put him at a wait of at least even given his i six a one unlawful presence waiver were granted here it would leave him in a position where he'd still have to remain outside the united states eight months to a year possibly more  while his eye to twelve waiver was being adjudicated we now have the ability to file under the new regulations remove ability waivers here and then file the unlawful presence based on whether those are granted or not  at this point conciliation or mediation would just help in the sense that he wouldn't have to apply to argue he is invisible otherwise admissible so he wouldn't have to file for the eye to twelve but his time outside of the united