the board of immigration appeals level what the petitioner is an fact bringing in the issue is the fact that his particularly case brought numerous issues that have not been addressed one of the issues of petitioners grief whether or not visa can be really used that particular case was decided after this petition or brought the issue before the board of issue as an example in my brief so there are other issues which are also issues of first impression that would have required the board member to transferred over to a three member panel which that board member considered and doing whether to keep it himself or herself to decide it or whether or not to transfer it to a three member panel would that be at th it would be a discretionary decision but if that affects the petitioner in a way that due process rights will be violated for example by statute and elian in an immigration proceeding has the right to appeal this case to the board of immigration appeals and when that petitioner reaches that administrative agency he obviously has a he has a right to full and fair hearing how can you have a right to a full and very hearing if the board of immigration appeals is not even following the regulations that require it either to give it to a three member panel or to allow summary affirm it's under the streamlining regulations that you make are due process validation argument in your brief on it on that particular issue there is no due process violation argument right so it's either while the legal question is whether well for one whether they be i e follow its own regulations where the administrators agency followed their own regulations the court can look at that without getting into a what the regulations provide for if there are certain factors and your case fits within one of those factors and has to be assigned to a three member panel and it's not what it says must be it doesn't use the language must be but it indicates if i don't remember exactly right language that state but i'm more of a guideline than a requirement but not necessarily i think what's the language falls within any of these categories then a three member panel may hear the case i don't hear the case well i don't think i'm looking for something that's that's mandatory i'm asking you you know it's mandatory language and here three member panel if appropriate this is from the procedural form to improve case management the sixty seven thread read august twenty sixth two thousand and two well your honor under subsection eat the regulation read may only rules change they wanted to be discretionary and not five that board member can do it in two ways the first way is by issue issuing the summary decision without opinion and the second way is by issuing a brief order of firming modifying or reminding the decision in this case the single board member of dress all the issues in a quite lengthy opinion and in reading that section together with the other structure the issues that this petition represented do not they they would not allow its single board member to decide this case where that board member by regulation is limited only to a brief order with you read those two sections together that board member although the regulation in one portion of that use of the word may would have required that  but i gave i mention that case by way of example if you got this not all of the you only gave us the status based on a visa petition argument you gave us no other argument that's the one you identified your very that's the one identified by way of example but the now you're changing your not necessarily changing at the brief addresses numerous other issues that are of first impression i'm going to address one of your other arguments we understand your argument on this point i will thank you and the government makes an argument that an immigration judge can under the regulations decide whether to reopen reconsider his or her own case and again i have to question whether or not we have  the first question is whether race really caught up lies or not in immigration proceedings that we all know that it does those cases that it does in this case when the immigration judge decided in the petitioner slaver that became a final decision appeal then it got sent back to the immigration judge for the immigration judge to issue an oral or written decision because the petitioner had not yet minute that he was removable from the united states now that immigration judge made that decision as to the two level of france our argument is that that became race judicata and it could not be revisited in later proceedings so of whether his two eleven offense would be a disqualifying offense or make him to portable because it was committed within five years after he was admitted i one an immigration judge may upon his or her own motion at any time reopen to reconsider any case in which he or she has made a decision unless jurisdiction is vested with the boards the problem i have with this case is that the judge initially made that decision  right after proceedings were initiated it goes up to the v i i comes back then the then the immigration judge makes that distinct decision all over again and during up period of seven time when the immigration court agreed with the petitioner that the offense that we love an offense was not deportable threats because it had not been committed within the five years it shouldn't take seven the other issues are actually i need to address  or her and under those circumstances that same visa petition can't be used to adjust an existing lawful permanent resident and moving along with the issues as to the do to have h waiver of the v i i along with the immigration judge indicated that the statute we essentially have the same language and that language should also be imputed to the child because in this particular case that the titian as parents were permanent residents long before he became a permanent  board properly employed a single member panel to review the i j a decision second the board correctly determine the petitioners conviction for armed robbery was a crime involving world servitude committed within five years of his admission as a permanent lawful residen agree that the documents were sufficient to to prove that i'm happy to discuss that if the court would find it helpful but again i think under twelve thirty to be that we would have jurisdiction to reach that issue because it wasn't exhausted right and then the third issue that's know whether he his parents were lawfully in the country at that time at the time that he entered the country they subsequently became permanent residents and at that time became lawfully admitted now petitioners trying to to basically bootstrap additional has been a lot of ink spilled over the years and the court in that case look to the common law concept here of course the language is quite different doesn't talk about domicile it asks what hell how long the petitioner himself quote lawful you're either if if it were a distinction without a difference i'm not sure that we'd be having the debate in congress that's going on right now about immigration reform and whether or not family members should be able to obtain a residence with with  about both of those issues with respect to the lack of availability of an immigrant visa or the regulations that were pluggable at the time that he filed his petition and at the time that that petition was initially granted were very clear recognized that the same principle remains implicit in the current regulations and indeed this is a very sensible position because if it were otherwise then criminal aliens would simply get a second bite at the apple and family petition should not service get out of jail year and it doesn't make any difference that his parents have now become citizens because at the time of the application the application he's relying on his parents were not citizens so we would submit that there simply was no immigrant visa bailable to him and that waiver which might potentially be clickable to the drug related felony if that were the only felony here and again because of his robbery conviction which post dates the effective date of ira he's not eligible for to twelve the relief twelve age and indeed i don't think there's anything in the board's regulations that suggest anything to the contrary that the board's regulations simply note that you can apply for multiple forms of relief simultaneously that doesn't mean that you're going to qualify for all of those forms of relief an event twelve h was amended in one thousand nine hundred six as part of our ira and made retroactive to make such any any kind of reading like that of the regulations invalid because to twelve each specifically with respect to the robbery conviction and the issue with respect to raise you to cut into a sponsor but i don't want to necessarily take up the courts think we understand those arguments efficiently well ok i think you know the questions we rest on  the one of the jurisdictional issues in terms of exhaustion now in in the ninth circuit brief i do race that the immigration judge made specific that argument as it was presented to this court was not presented in that manner to the to the b i nonetheless i ask this court to consider that argument  based upon the fact that it wasn't exactly raised like that at the immigration judge level but what the petitioner didn't do at the i j a level was those charges were brought up the petitioner would deny the charges and he would put it is you put into issue whether the two eleven offense disqualified give you a little stronger argument but when you got to the i a e a you're charged with raising that if it issues on appeal yes and i do want to point out to one particular section of my notice of appeal at the be the last sentence certified