is not an aggravated felony under either the categorical or modified categorical approach and the government does not argue otherwise rather the government's sole argument on appeal is that this case should be rem got its banking from the supreme court on not remain ending i had another case under ventura the thomas case i'm not sure i understand are you saying that there's nothing for them to do on remand or eve saying that they don't need to do it because they've had their chance the latter your honor is that the be has already he didn't make his argument that his crime was not an aggravated felony he made the argument that he had ineffective assistance of counsel i think when  ira never addressed whether in their view it's an aggravated felony i'm wondering if there's anything for us to do in this case because the appeal to us doesn't raise the issue of ineffective assistance when he pleaded in the state case which is the only issue that he put to the b a but your honor i think there are i think it's important to point out that there were second thirty day extension of time i know that some panels of this court i can't unfortunately identify specific cases that this time but i am aware that some panels of this court have granted motions to hold in advance pending consideration by conceded that he was removable as an aggravated felony on the basis of his conviction for grand theft now he changed his mind apparently and in appeal that to to the board and the board currently didn't know that so i don't really have have have a challenge to that but my concern is that this had had a petition or during the immigration court proceedings deny the charge that he was an aggravated felony for the reason that the conviction records were inadequate to eliminate the possibility that he was convicted as an aider and abettor the government might have had the opportunity to seek a continuance to see if additional condition records were might have taken place during the immigration court proceedings themselves and that's why that would support in our view our suggestion that that the case of you re mantid reminded for what i'm about to be sure i know what would happen have the aggravated felony one reason is the one that we already decided in the case about access oriel liability as i recall another is is just too broad as it's not traditional common law theft because there are a lot of things designated in it that do not include asportation as an element and so it looked as though it really didn't matter you couldn't make out that just on a statutor reference in the abstract of judgment from the from the documents you're correct under a modified categorical approach you're correct your honor i'm not sure i don't think that the b ice decision this is really clear whether for what government to see if there are additional conviction records available like it like a transcript or hearing transcript where there's perhaps some colloquy with the with the criminal judge in which it could be discerned exactly what it is that that the petitioner pled guilty to conceding that the documents in the record don't reflect exactly what it is he pled guilty to and that this is an issue that supports fremantle reopen their record that's a point that was made and that's that essentially is is is all i have to say because the government concedes as matters stand right now there is really no defense that that that we can present but i do find the way this case proceeded through the court to notices of appeal to the b s a and then an appeal brief or somewhat unusual shall we say a little bit of a moving target i can understand the complaint very well it says that he took money labor personal property and real property of a value exceeding four hundred dollars from paul are airborne express airborne express as a company paul are sounds like a man i  on the basis of these documents why shouldn't we say well you had your day in court i'm sorry why should we just say you had your day in court you can prove whatever you want to prove and if you don't prove it you know the story that we're yes i'm i'm i'm only i'm only urging you to consider either holding this case in advance or a truck from airborne express going into a truck and drive away i think i think he did drive it away but i think and i think there are other charges on the there i think that there were four charges on the abstract of judgment the grand theft charge i thought was was was was stealing money my recollection is that there was a four hundred dollars involved i could be mistaken and that that was the charge that produced the  grand theft conviction for if they took money labor personal property and real property of a value exceeding four dollars i was thinking maybe that meant the truck but i don't know your honor from these meager documents i agree i don't know either and that's why i'm wondering if there might be other evidence that might answer some of these questions there may not in fact be thank you can i thank you i think your honor that if i could address just a few points that the government made first of all sounds like the government is for the first time making an additional argument to this court which is that essentially it wants a second bite of the apple will hold on let me let me focus young what's on my mind chart the other judges may have things on their minds to what's on my mind as once burned twice shy we had the supreme court has made short work of our decisions where we didn't remained and them i'm wondering whether we need to remain and so that the government gets a chance to poke around see if we can find more documents to explain what this fellow did a lot of the cases  properly and carefully it's just not in there what mr kenyon conceded was that he was convicted of grand theft under section forty seven any and that's it and that in turn back to the question whether section forty seven a violation of section forty seven a amounts to an aggravated felony under either the categorical or the modified categorical approach and for other reasons that we explain in a brief that it does not is the purpose of the ventura three man to allow the agency to exercise its discretion it's not to reopen the case in chief to allow the government to supplement its proof it's to once the rules are understood to allow the agency to do whatever it's supposed to do yes or no that's not it absolutely your honor and the issue in ventura if i remember correctly was there was an alternative argument that was considered for the first time before this court it was the changed circumstances argument that was