of immigration rule orders on that point the parties agree the parties agree that the prison mailbox rule applies the parties agree that mr chivery complied with it and the parties agree that therefore the petitioner in disagreement among courts about that  with respect to the ninth circuit agrees the second circuit agrees the fifth circuit has had contradictory guidance in a case called griefs which pre the current rule twenty five you know i'm not interested in anything that preceded rule twenty five a to c does what it goes so maybe i should be more precise about my question is there any disagreement among courts preceding rule twenty five and it didn't address the language in a previous case smith versus connor the fifth circuit did say that the language of rule twenty five over other terms  second with respect to the other jurisdictional issue the government argues that certain jurisdiction stripping provisions apply but it's undisputed that the presence of a question of law under eight u s c section twelve fifty two eight to date would restore and regulatory right to a reasonable opportunity to present evidence and in particular offered mr chivery a no reasonable opportunity to present testimony in support of the essential elements of post conclusion voluntary departure which was the only form of relief that the voluntary departure but the immigration judge refused to consider the or you know what we're going to tell it's similar to my question to you or your predecessor you if the immigration judge blocks something that somebody wants to do i understand that is a refusal to actually a legal error but when the immigration judge just doesn't do it on its own the question is what rule of law requires the i j a to do it so and the  answer that question is in record over which is a binding i don't know that's not a rule of law and if i understand that is not a statute is not a regulation if i understand the attorney general position correctly it's that no argument based on cordova was ever made to the board of immigration appeals and so precise administrative remedies has not been exhausted is that correct or incorrect we we disagree we disagree we believe that that where i greet was an argument based on cordova made to the board of immigration appeals now no argument are at specific now we have to figure out the consequence of that fact at least you agree on the that i agree that in a record of i was not mentioned to the board of democrat immigration appeals that is correct ok up what was mentioned was a due process argument and get well as as you must know this circuit says that in towing the phrase due process doesn't constitute any legal argument at all you have to a debt a fight concretely what the problem was and you start with statutes right or you start with things like cordova so let me think what the argument a different way was an argument made to the board of immigration appeals of any concrete legal argument about why the immigration judge ha to do this with respect in record over here we've already agreed that cordoba was not cited was there any other argument to the board saying that for some legal reason the immigration judge had to for the immigration judges and supposed to follow the rules that's right and the whole point of it in a record of a is to establish a duty on the part of the immigration judge to inform immigrant must notify them of potential forms of relief for which they are apparently eligible including voluntary departure now the agency in record of a framed as a as a due process issues that that that statement was as a result of due process and essential part of due process is to inform petitioners of their opportunity to apply for pre conclusion voluntary departure and our position that by mentioning due process that mr chivery exhausted his administrative remedies as this court said stating hon don the question is whether the board was put on notice of the issue and we believe it agency denied mr chivery his right to a reasonable opportunity to present evidence and that issue certainly was exhausted he was given no real opportunity to offer testimony on his own behalf regarding the essential elements of post inclusion voluntary departure g did was unacceptable the i j conducted a rushed cross examination that focused on analysts the only two facts that mr chivery is married to united states citizen and that he has four united states citizen children and then the hearing mr chivery has opportunity to present testimony concluded there was nothing else the i g never asked any open ended questions never gave mr chivery a chance to support each of the elements of the relief that he sought and he was never informed that his opportunity to present evidence was coming to an end after the cross examination by the i j a the the i j a mediately turned the hearing over the government which briefly described as mr minor criminal convictions and issued a ruling and on that record and that one sided record it's not surprising what conclusion that the i j a came to how the i j a in the board both criticized mr chivery for failing to demonstrate sufficient positive equities and if you look at the transcript when was he when was mr chivery a pro se petitioner supposed to demonstrate positive equities that would support his claim for relief he was never given that chance and that is in error now in similar circumstances this court has repeatedly remanded where the agency has improperly limited testimony improperly cut off counsel i hope you appreciate i will come back to the question how did he limit testimony when there wasn't any present what we're dealing with and what i think we have to face head on is water aren't immigration judges duties to do things without being asked and then what has to be done before the board of immigration appeals to preserve for judicial review an argument that the judge didn't do enough we're not dealing with something where the immigration judge refused to listen to testimony or refused to allow the elian to present evidence  in this context in the context of a pro se person he had the i j a never invited never invited the petitioner to offer testimony there was  five if i understand it at least what the lawyer for the agency said is that there were two continuances when your client said i have a lawyer i want to consult with him and the immigration judge said please go consult with your lawyer and you when you're poor can discuss what motions to make and then at the third hearing immigration your client shows up without a lawyer in the immigration judge says please present what you want to present right and your client then did not make this particular motion that that is not correct that the immigration judge said please present what you want to present that is not what the record in this case shows what the record in this case shows is that the i j a asked a series of very targeted questions and then immediately turned the hearing over to the government there's no police present what you want to present statement in this record i see my time is up to case thank it commands it's the board of immigration appeals commanding the immigration judges to notify potentially an applicant potentially eligible for voluntary look at the the actual transcript of the of the hearing again he missed every a rare is said that he had an attorney at the first june second hearing he said there will be an attorney here so the immigration judge gave a continuance and said we'll talk about to tell the immigrant that you know he's potentially eligible for voluntary departure now why are they the immigration judges simply paid no attention to what  immigration appeals tells them they will if you look at what happened the i g did in this case was that mr chivery has brought it up and said well if nothing else i'll take on third party he brought up the issue of altered part of but then he also said the same sentence that i would rather stay here so that kind of communicated to the idea that he wasn't interested in that so what does that mean of course he'd rather straight here stay here don't want to be deported but given the given that he's not going to be allowed to stay here he would prefer voluntary departure presumably if you know what it is you know he's supposed to be told that's an option we had was i'm told i don't get it in that context of that call  of well it goes to whether or not he had a fair hearing and it's true that the immigration judge didn't spell out the whether or not he had talking about spelling out i'm talking about doing what the board of immigration appeals told him to do well i would agree that that didn't happen you know i think if you are an immigration judge as a manual like the manual for district judges with a list of things to step through in each case and check off there's a manual that exists is cordova in that manual is the requirement of court over in that venue i couldn't speak to that right now i'm there is a menu i don't know if it's contained there or not but i i can speak to that right now certainly would would help you know all bodies of war complex after a long time we have this problem with district judges who don't go by the weapon to take a guilty plea even though there is a checklist a checklist sure do help if it would it would help in this case too but i think you have to look at the context of how the hearings proceeded and  to return to the point on exhaustion mr chivery a wrist never brought that issue up to that board of immigration appeals so the specific cordova argument wasn't exhausted and oh you mean he may have absolutely no knowledge with as i believe his opinions but he did have the opportunity at the first june second hearing the immigration judge explained in detail how the proceedings worked and the opportunity for him to get a an attorney so he could have availed himself of that an did he said he would so the immigration judge was was more than fair in giving him multiple continuances the lang hearing for the end of the day on the on august fourth the last day mr jeffrey express said suggested faltered partial but he also said he'd prefer to stay here and ultimately to with this case but whether or not it's preclusion or post inclusion voluntary departure is a distinction without a difference because ultimately it was denied as a matter of discretion said well if i get this information would it help my case and she said well you had the opportunity to do that it's been two months of continuances he had been detained for over three months and nothing happened so she asked him whether or not he would accept possibility i would have to assume that he didn't but he began to get the opportunity to get an attorney he didn't for whatever reason and kind of what the immigration judge said that i continued your case twice there's a mean opportunity to get an attorney said i'm going to get an attorney bill be an attorney or the next year and he said i've got an attorney but he can't be here until the nineteenth and then at the third hearing he said i don't know what's going on i thought that we're going to be here and then the immigration judge kind of pressed him on that point and said what exactly have you done to get an attorney he said well i appreciate the opportunity to look for one i inquired about it so at that point it was obvious that he never had an attorney and even though he was provided the opportunity to get on so he had a as far as the ability to present its case he had a full and fair opportunity to do that and he didn't avail themselves of that opportunity sir first we don't raise an argument in this appeal about a right to an attorney and what i haven't heard from the government and didn't hear just now is a defense of the actual the actual conduct of the ita at the removal hearing and at an explanation for why that two page cross examination was sufficient to preserve mr chivery as right to a reasonable opportunity to present testimony if there are no further questions