resident of the united states he waited three years or so before the american embassy process his immigrant visa and then he came to the united states and our exhibit believe it find an application under the former section two forty one and then also when he wanted he asked relief he still had his motion pending over at the  is in canada in june but before you go there why don't you answer it and the legal now i know a lot of times you know we feel bad about exhaustion dismissals because we know it might come back the same way but that there's a reason for exhaustion and that is somebody else does think it's out in their context before we review it so i'm just wondering as a legal matter do you have a way out of the exhaustion issue i think my only response to the court is could there be exhaustion if there was no remedy available at the time that he appeared before the immigration service and the answer to that question is that he had no after the decision from the supreme court and here and that occurred in june of two thousand and one it was in june of two thousand and one that's the last kumar found himself attempting to go through the inspection process in calgary and then made it to the united states and was deterred and it was in the summer of two thousand and one and then in september of two thousand and one that the immigration service finally issued the notice the charging document notice to appear against year last more than half a year before he actually comes to circle to the seven years if at all that he would that someone could say in court whether it would be the agency whether it be the immigration judge or the defense lawyer to come forth and say i think you may be eligible because now he's met with seven years that raises a number of other issues for us that we've seen in the district court judge jenkins actually presented to him because when we were at the district court if we go beyond the exhaustion question now and we look at her eligibility when how can we say that someone who comes in with a green card in one nine hundred ninety five  time how could there be any reliance that would be the june two thousand and one decision and that's that's what we rely on that you think that case you create there isn't any other case it's better for you there is think i believe that there may be another case out of the circuit that addressed the issue and frankly we've not so that brings me back to judge me killen's question how can you have reliance so that we could say sanctuary or apply i think the way it has to be done  there there there is no good answer to say there's no answer that i can provide to the court that would say this man had reliance if he'd only been here a year in a few months as a permanent resident although this court has recognized that it doesn't matter if you didn't have the seven years at some later date even if you're here and you were the order of deportation was entered five six years before if we find that you gained the seven years would also be relief but also be inappropriate because the fifth i saw that footnote but i didn't think there was much reliance on it you think that's an alternative i think that's an alternative face as i think the merits are the strongest but i will point out that was in removal proceedings after saints year had been issued sincere was available to petitioners counsel did not file an application for to be quasi relief and understandably so everybody involved including the immigration judge appeared to recognize that there was no relief available to the petitioner because the state's fear provides no assistance to the petitioner and that leads to the merits which is the petitioner was placed in removal proceedings c relief at the time he pleaded nello to the charge of rape with a foreign object and false imprisonment and that's because both of those crimes are aggravated felonies and the petitioner in this case does not dispute that the argument is that they couldn't have justifiably relied because they pled he pled after the amendment has there been and i think and this is just a line drawing what we're going to do now is line drawing when you get the benefit and when you don't present been a case published in any of the circuits under these circumstances where the plea was soon after they changed and they are arguing that they should still have the reliance benefit the sinks here well i could say that i have not seen a case in any circuit in the petitioners favor in a situation like this where the plea was after it had no i didn't care whether it's in his favor i will know somebody else has decided in his favor only had to be sentenced to five years you had to yak actually had to serve five years so that was the argument below in my grief i pointed out that actually the plea was after it so it's irrelevant whether the petitioner actually served five years or not what's important is that the fact and i'm not sure if mr one heart zero will disagree with me on this or not but the petitioner in fact was given concurrent sentences both of which were five years but you're saying actually that the at least five years that's a little complicated because the court imposed six year terms on each but gave him credit for the time that he had spent in county jail in good time credits so it actually resulted in two five year term i would also just briefly address an alternative basis for upholding the district court's decision you know even if the court were somehow to find that the crimes were not aggravated felonies for that you establish seven years of continuous residence and that's the time he pleaded i think it's difficult to say that any expectation he would have of eligibility approach to quality really down the line when he's placed  actually did acquire seven years can use residence before that happened my argument is that that may be so but at the time he pleaded guilty he had no reasonable expectation that that might happen so i think it's it's dispositive in the