future persecution before the evidence and testimony was even presented at the removal hearing in this case the government actually stipulated to the gruesome murder of mr mendoza rizzo's father as well as the fact that the political group the sandinistas who were responsible for the murder of mr mendoza rizzo's father also threatened to kill the entire the advise of the regarding voluntary departure guests your honor it's the position of petitioner that abdal song doesn't necessarily apply to this exact scenario because while the holding in that case did find that if the board of immigration appeals remey ended back down to the immigration judge on substantive issues that it was not a final order they did not find that when a case was reminded for perceived role issues specifically  five twenty six right correct yes at page five twenty six at footnote eight this court held that under the facts of this case we need not revisit our rule that the b a's decision is the final order of removal when it  yes your honor it is the petitioners position that he did it exhaust his claims that he did in fact meaningfully challenge at the b i a level he didn't challenge the denial of the cat application at all do you c the aliens claim that the decision below was wrong and we have our own and bank decision and b b versus mukasey that a claim that's raised but the not pursued in the brief is not properly exhausted think this is a very great question i think you ought to look at the decision of the v a on page two the first paragraph it says right there for instance says to the i j s finding that the respondents  asylum application is time barred and it's untimely ness is not legally excused the respondent only argues that the board up hold the finding but that he is nonetheless prime  eligible for withholding of or mobile so it seems to me that the board did not think there was any asylum claim and the board didn't think there was any cat claim and they went on to suggest as to whether there was a as stablish is a clear likelihood of persecution so it seems to me that the board suggests that there's no asylum there's no cat but as to withholding the only thing we can at is the clear likelihood of persecution i would agree with respect to withholding and i would submit to this court that mr mendoza meets the burden for withholding of removal but at the same time with respect to the there is the government's counsel has argued that it's time barred however i believe it fits into the exception because mr mendoza rizzo was in and accompanied minor when nineteen ok i thought he was twenty but it was he was over eighteen in any event he was over eighteen when he filed right however as an exception to the one year rule which doesn't operate as an absolute time bar is when somebody has legal disability or is an unaccompanied minor at the time he entered he was right but i kept asking who was in it as of the time of the application and you say no at the time of the application it it's my understanding that it doesn't necessarily matter if the application was then filed within a year after is for the advise on voluntary departure which is on reviewable anyway by us so all the reviewable claims are final yes your honor the factually this case is in line with pinto and castro the but the at  this one decision is clearly irreconcilable with those with pinto and that line of cases not really because there's nothing for those court to review with respect to advise those that's not a reviewable order that's why it's probably why  it stated that the purpose of it is for the voluntary departure advised holes and a new time period it was still a general purpose room and when the board remained and and state law it states a particular purpose if it does not retain jurisdiction and then limit the scope of that remain and that the the immigration judge takes full jurisdiction over that case again and he may hear he or she may hear any new claims or new evidence presented during that remained and proceeding even if they are are beyond the stated purpose this is in line with all of this to solve this case is not up on all fours with pinto it seems to me that if you read the facts of pinto and you read the facts here and the percy jury in both cases they are the same what is the difference to answer my question i guess i'm trying to figure out whether there's any difference between the facts and the procedure that was involved in pinto and the facts and procedures that are involved here and i found none and decision is a final order of removal when it memory remands for consideration of voluntary departure but did not all other forms of relief which is exactly what pinto did and exactly what our case does your honor therefore so therefore i don't know how we don't say it's a final order it's your honor with respect to your first question the factual difference factual procedural difference between pinto and here there there is there is one in pinto the remain limited it's i went back and check the actual board decision in that case in the past week and it did limit the remained to that one issue voluntary departure here here while it gave a reason for the r ten sixty nine and this read agree or agrees with the board's matter patella decision so it says that the immigration judges jurisdiction  judge may consider new claims or issues that may come up during the remainder perceive things and such so as long as there's these remained at proceedings going on before the agency there is this possibility of new claims new evidence that may render judicial review move or change the scope of it may not be the case in this present time is limited ok assuming for the moment that we decide we do have jurisdiction under pinto ok i would like to hear your argument on the time bar issue that i was argument before the board and the board said so and then on top of that before this court there's an exhaustion issue there's an exhaustion issue and then on top of that he he did not challenge the procedural issue of whe correctly decided that he failed to meaningfully challenge it so there's two things two levels here that he hasn't even addressed before we get to the substance of and regarding the substance the point as as you mentioned john or the government agrees it's a bit that that not exception but that is the part of the statute that says an unaccompanied on accompanied minors application the time bar does not apply to him or her that but that depends on the topic if he applied while he's on the company although i know that's the question you're accessory said that's not the law she just thought i was wrong when i asked the question is it is it his age at the time he enters or is it his age at the time he  come in as a minor but then applies a few years later so he or she's beyond the time period and there's an exception that is called legal disability may apply and you can discount that time that he was under age but with respect to the statute that just says hey the time bar does not apply to an unaccompanied minor it's at the time of filing because if you think logically if someone came in at seventeen then when they're thirty remainder of the merits of the petition for review and as i said earlier the petitioner failed to fail to challenge and thus waived the issue of the board correctly determined that he f immigration judge that is also straightforward such a due process claim one has to show error and prejudice there's he has not shown prejudice for the same reasons he failed regarding the appeal and the error immigration judges are by statute it's their responsibility to question cross examine the alien and help develop the record and while his tone may be argumentative at times all the questions raised were relevant and to the specifics of the case and so for these reasons first the government argues that there is no jurisdiction and that this court should extend the at this lon holding it is clearly clearly irreconcilable with pinto and if not then the court should deny this case on their forty seconds left we've talked about the cat claim we talked little different manner and once again he failed to meaningfully challenge well i think that's right the adversary but if you look back to the brief that he submitted before the fore all that is mentioned after you know all that is about the due process i mean at the end he says he presented a well founded fear of persecution on the basis of impure political pinioned the evidence presented of the brutal killing of his father and other similar such a way to people support this well founded fear or a clear probability that doesn't exhaust i mean that doesn't mean the challenge the issue because it doesn't dispute the the underlying facts and the fact that his family remained in nicaragua without problem or the lack of background evidence of whether the center needs to control government would would be interested and would target him for such persecution or using his raise but not meaningfully argued correct your honor tha thank you with respect to the issue of due process and the immigration judge in this case while the law does provide that an immigration judge may interrogate examine and cross examine a witness in this case the immigration judge far exceeded those parameters on where is the prejudice i think the proof of prejudice is provided for in the immigration judges oral decision in that decision the immigration judge state as counsel for the government just pointed out that mr mendoza rizzo's families still lives in nicaragua without any issue that is provided for in the immigration judge order but the transcript provides that the family's been living in hiding for ten years and the transcript of the hearing provides that the mother abandoned the whole family abandoned  property because they couldn't go back to sell it because they would be killed the immigration judge's decision finds that mr mendoza risen so attended school and never used a different name however may just finish this thank you however the record reflects that the testimony actually stated that a year after mr mendoza's father was murdered he had to stop attending school because they wanted him to use his name and he was actually going by a different variation of his name so people wouldn't know him i think that's the prejudice that is