exceptional circumstances here that we should consider in deciding whether or not you you have to be fair we believe your honor that the question of whether the circumstances here are exceptional are for the board to decide not for this court as in as part said this court review is limited to the reasons the porch gave for its decision and the board here did not consider mr lockhart his argument that he was denied due process in his deportation hearing because the immigration judge did not comply with the agency's regulations designed to protect his due process rights and did not ask him to plead to the charges or cleared to his to court ability we believe your honor  understood them or if the judge's characterization of them was correct and he said yes i understand yes they are correct at least from the transcript he did not speak english well and it was through an interpreter the immigration judge never reasons now at the time the relevant regulation was eight c f r two forty two sixteen and that regulation said that the immigration judge shall require the respondent to plead to the order to show cause by stating whether he admits or denies the factual allegations and his deport ability under the charges contained therein so this failure of the immigration judge violated the agency's regulations and as this court held and  again in johnson violation of the agency's regulations implemented to protect fundamental due process rights warrants invalidation of the order without any showing of substantial prejudice so  isn't there a misrepresentation there that sort of poisons the whole proceeding that would not be present necessarily if you if he had admitted he was and if he had proceeded under his correct your honor i i don't think that was the ground for the board's decision so i don't think that can be the basis for this court's decision the board's decision did not address one way or another whether he was denied due process or whether as your honor points out it might be a reason he was not too dissimilar process that he said  he he was jose rayno so south i think it's equally inferrable from the record that he was say he was the guy who who face these charges i don't think there's any any finding of holies named chris seedings it's about our main argument why the court has jurisdiction is that this case is controlled by cruz i think i've laid out our view of why it would be a legal error jose cruz versus attorney general for fifty two f third two forty and what the court held in it we think this is the same jurisdictional conundrum the court identified in cruise because the board's decision does not say whether the denial of reopening rested on the reviewable legal error the government acknowledges that the court could review legal issues which would be the the the legal are identified that the immigration j failed to take his clear or on an under available exercise of discretion that even though the immigration judge violated his due process rights that would not be an exceptional situation warranting reopening  floor yes that well the court can review the legal issue and we'd submit it was a violation of due process that the immigration judge failed to take his plea at the hearing and i don't think the government has disputed that and in its  said it it makes some other arguments but it doesn't point to where he was asked to plead to the charges as or explain how the regulations were complied with in the deportation hearing pretty sure you mean the underline commission no i mean the charges in the order to show cause with which he was served before the deportation hearing and to plead to whether or not he was deportable on those charges on that one kept the immigration judge said i'm going to tell you what the government says about this paper and i like you to tell me whether it's true and correct and then he walked him through you're not a citizen of the united states but of the dominican republic you entered near miami without inspection you were convicted in august ninety five of these two drug counts is are you saying that the the the missing part was that he just didn't say do you agree that your deportable that was missing your honor and the other thing that was missing is all of the sentences began the government has charged the government claims so it was ambiguous whether he was being asked do you understand the government's charges or whether he admitted to the charges now the regulation requires the immigration submission is the he never proceeded beyond the first step of identifying whether mr ouattara understood the charges because all those statements were prefaced with the government well and then i asked them i want you to tell me if they're if these statements are true these would be a basis for to court ability do you concede you are to court about the other argument we we make is that the court has jurisdiction because the board failed to follow a settled course of reopening cases so alien could apply for relief under the former section two twelve c of the immigration and nationality act on pages twenty two and twenty three and footnote six i think of our opening believe the way we read the cases your honor and there are one or two with some more reasoning but the bulk of those twelve cases do not state anywhere in the analysis whether the after can add accrued the requisite physical presence before the deportation order or really engage in an analysis of whether the applicant is facia entitled to the relief so it's our reading of the case is that what the board is doing consistently is reopening to permit  application without requiring such a showing with that i'd like to reserve the balance of my time for all good thank you thank you agency found that in those cases the petitioner was eligible for to twelve c and this case petitioner is not statutorily eligible for two twelve c it's it's one of the reasons why the board tonights was spontaneous they said that he couldn't c to be eligible he needs to have seven years of time aside and he cannot meet that here he will what about the seven years thirteen years between the time he we entered in the time he final which was nine hundred ninety six at that point he was no longer considered a legal permanent resident and has a crew all of lawful dharma sile stopped so you know we would have two years additional he was he was so that's two years and in addition he was deported to the dominican republic in one thousand nine hundred eight so at best he has four years of presence and at the time that that order was issued the clock stopped running he'll only have the requisite two years and so he isn't he is not eligible for to see to the extent the heat he claims that he continues to be eligible he hasn't shown how he gets past the final order of deportation which cuts his legal permanent residency and of course as we know he isn't two hundred proceedings i'm going to you work he's free to or departure here he has the new jersey state truck convictions opposing counsel raises issues with the immigration judges questioning we we don't see the same issue she goes through each of the convictions she asks him if he understands that the are convictions that the government has alleged against him that the user the basis for these charges him do you concede or deny these charges she found him deportable independently he started her review of the connection records that she found to be clear and convincing evidence in connection with his admissions that yes these were my convictions and they relate to me so i would be immigration judge her actions were proper and they were particularly proper because he was per se so we have you know here he she didn't rely on just some of what he said she went to the evidence and so that was proper he also can't show that his his outcome would change the agency found him to portable based on these controlled substances  convictions for had their man a conviction of a controlled substance offense he cannot show that that doesn't apply to him that if his proceedings were opened that that would somehow change saw addressing those circumstances here we don't have any of the would be vacated convictions the board has no settled course of reopening for petitioners who are eligible for two twelve c as is  thank you your honor i think this case is exactly like cruise and i just like to read some passages from crews in cruise the court this is jose cruz again where a b i opinion weaves the scope of our jurisdiction and question we will remain  the b i a for further consideration that's at page two forty nine at page two fifty eight the court said we find it to be inconclusive whether the decision to reopen in this case implicated it unfettered discretion the gave no indication that it considered a cruise is core argument and then went on to find that because it could not tell whether it had jurisdiction over the legal issue it had to remand to the board for further explanation because the board here did not address his due process argument and acknowledge he was making it acknowledged he said immigration judges failures to prompt him of due process and his hearing but it did not address the argument we therefore don't know whether it's decision rested on an incorrect legal premise which you can review or i'm an exercise of discretion which the court can't review and cruz says in that circumstance the court remains to the board for further explanation that's what we're asking the court to do the government is litigating this issue before this court without a finding from the board on it without any conclusion to defend and that is that that is improper under  cruise on the point about due process of the government said repeatedly that mr ouattara has not shown prejudice under the court's decision and leslie which involves the current codification of the same regulation i've discussed with you the court held that an alien does not have to show prejudice if the immigration judge violates a regulation and that was designed to protect fundamental due process rights so we do not agree that any showing up prejudice would have been required had the board reached this issue in the settled settled course issue i believe the government's principal argument is that he was statutorily ineligible for two twelve c really including now based that the prior order should be reopened because of the due process violations in which case we think it's at least the board should explain whether he could then be eligible think the correct remedy given the due process violation is an invalidation of the order and we think the logical extension of that would be that he continued to be a lot of prominent press ok and then on the due process have you i don't recall have you given us any cases that that the pleadings are an essential part of the process designed to flex your process but we mean we haven't found a case where this was argued one way or another i think there's a script to the executive office of immigration review gives them a gratian judges