is there is there a way for somebody to get nineteen months for sale of cocaine and have it not be an aggravated felony i don't know you know neither do i the position that every with those records that are missing from this for will he ultimately he ultimately agreed to a voluntary departure is that right that he had one point and that has far less severe consequences and if he's booted out of the country right that is that is correct so what i mean what is the import of the aggravated felony because if he voluntarily departs when he chooses to come back again or if he chooses to come back and then at that point when they win there then be some determination as to whether his conviction was an aggravated felony or not didn't properly advise him regarding his potential right to stay here and he shouldn't have agreed to voluntary departure am i right that is correct but he never could also shows that is there are a number of cases saying that that you don't need to be precise in your application but the average decision as i read your argument you were trying as i read your argument it's a little more n counsel we can't be sure that he knew the importance of being completely precise in what he was saying in his application and it's not clear that he knew that if he pled to alastor offense he should've said that in his information and because the best ad to fish and performance we do not have the required information we need to know whether he's eligible or not and so therefore you know the petitioner on appeal does not need to explain disavowed although counsel has referred to it as having been withdrawn it was not withdrawn for lack of accuracy it was withdrawn in the context of a hearing in which voluntary departure was granted if we have a situation here where nobody from the it appears that the the petitioner here is the one who disclosed his conviction right and he  is not necessarily i don't know i don't know the man obviously but it appears that he may not have been the most precise and articulate of individuals in the english language ok so maybe  know survive or something in spanish but he's not great in english so here we go he says he got convicted of selling cocaine that it may have been the where he got selling cocaine is multiple years generally so maybe pled to something less that it would not be an aggravated felony it doesn't appear from the record that anybody along the way ever did any analysis of his real conviction and what the consequences of that were and whether indeed it was an aggravated felony which would require is removal under under under the most extreme circumstances and it doesn't appear that his lawyer ever attempted to do that either is not troubling i think the context is important here because was alluding to instances where conviction records are examined under categorical and modified approaches these are circumstances where in which  point it doesn't appear that his counsel in fact judge fletcher also made the same point doesn't appear his counsel who and i agree with you and you're right on the law i don't think  otherwise they have the burden but it doesn't appear that his lawyers ever did anything with respect to suggesting he might be eligible for some sort of additional relief and they just said well they're going to let you voluntarily depart goodbye i don't think the record bears that out if one reads and it's a very short hearing transcript in january two thousand  two you have government counsel petitions counsel and the immigration judge really trying very hard to find a way to grant this individual some sort of relief they cancellation of removal and voluntary departure were initially sought in january two thousand and two however because of the lack of qualifying relative and the apparent but i'm going to let you file an application anyway because this is your first hearing and i don't think you're eligible to go ahead get your fingerprints file an application comes back and does not and it looks to me like the immigration judge was begging the lawyer in the lawyer was not doing anything ok well to the extent that the claim is ineffective assistance of counsel because the first lawyer did not do enough the the first attorney believes he had a disqualifying convention and a lack of qualifying relatives and well are either of those neither of those facts have been proven to the contrary or even any evidence of method to quality into question even the second attorney who moved to reopen he did not and i would submit this is important in terms of demonstrating prejudice he demonstrate the lack of a disqualifying conviction and yet contrary to calling into question the asylum application file that cancellation application which corroborated the main difference is that a disqualifying conviction such as an aggravated felony drug a conviction would not necessarily preclude an  those who have been granted relief under this retroactivity theory they were all and legible at the time of the plea they had all accrued the necessary continuous physical presence which  requirement in suspension of deportation in fact it's ten years of continuous physical presence after release from prison after release from prison in required it's different in suspension of deportation with respect to an illegal alien and it in in this case because of the ten years of continuous physical presence for quire men after release from prison his documentation indicates a conviction in eighty six nineteen months the earliest at which he would have been released from prison under his own admission even if he were able to have accrued time putting aside the requirement that he be eligible at the time of the plea which is undisputed he was ineligible even if he had waited to accrue that time and then fi application it would be after the enactment of my rewrite and its effective date at which the spencers of deportation was repealed and cancellation removal rules apply so really then back to whether what he pled to even under the best scenario is really an aggravated felony and we really don't know that yes but i think that the  jurisdictional hurdle of the failure to exhaust an administrative remedy in not asserting or raising these issues before the board on reopening are significant well what would be the harm in allowing competent counsel the opportunity to attempt to establish that i think the standard that this court has applied asking is for the opportunity to do some more investigation about facts and circumstances of which it is petitioner who is the best situated to bring and loose a date that and on whom is the burden to elucidate that before the agency and despite several opportunities a hearing before an immigration judge a motion to reopen and even then out before this court even though it would not be in the administrative record concededly outside of the court's purview to look at it even now there's been no proffer of any such information the reopening statute and regulations have where where the ninth circuit said that in support of that if there is a negative in friends in the record that is not enough that is not enough to preclude  good moral character so if you don't have ten years of residence after the conviction i believe that that that's the issue that that comes into play is that if you don't have the ten years of presidents and you can't have the good so that in years and used the central element of to the extension to the extent that whatever that conviction was that automatically preclude you from having good moral character here we don't know that prisons post release from prison well the president's work there are two separate requirements the first requirement is that you have ten years of residence and then the second requirement is that during that ten year period you have good moral character so arguably if you were in prison during that ten years you don't need to be out of prison for ten consecutive years after your release as long as that whatever that conviction was  automatically disqualify you from having good moral character so it's the extent that whatever his conviction was did not just qualify him he doesn't need ten years post his releases and but i would agree that if his convictions ok thank you for your