before you begin i'd like to suggest the following the solution for sleeping us in the wizard of oz as they were going through the poppy fields was to run really fast i don't i don't know the courage of the cut short your commission of lewd acts with a child and the age of fourteen for which they served notice of removal upon him and subsequently found him to have committed an aggravated felony sexual abuse of a minor and a basis for  s twofold first of all they argue or on its face it's two fold but really it's the same argument characterized in the second iteration the first argument they make is that it wasn't presented below in order to look at what in any independent written analysis at least in its decision so the record that we look to here is essentially the hearing before the immigration judge and then subsequently the notice of appeal that was filed to the agency for purposes of its review before the immigration judge the question was squarely presented to mr gomez martinez as to whether or not he had been admitted to the fact that he had been convicted of an aggravated felony sexual abuse of a minor on page eighty two of the record the first issue raised in this town is on page forty one of the record if the first issue raised he states the immigration judge erd when the i j a sustained respondants conviction as an aggravated felony so the very question he raises is was my conviction an aggravated felony and that question is precisely the question indeed if you read our first question presented for review in our opening brief in the question at issue here because when one asks the question as to and that test as to whether or not a particular conviction constitutes an aggravated felony is a two part test the first test is does the crime in question of which the petitioner was convicted categorically constitute an aggravated  consider the wide breadth the sweep aider and abettor liability under california law and in other cases in similar circumstances this court has held that because quote any and all circumstances under the proposed crime have to be considered to determine whether or not a crime categorically constitutes an aggravated felony then in turn all conduct must be considered and the case previously held that something was categorically an aggravated felony is non binding on this court for for that decision  individual was guilty of doing something that constituted the aggravated felony as defined by the federal statute in this case the record isn't there and the government doesn't dispute to to prove those facts all of this goes to this point that the question was presented to the immigration judge as to whether or not this petitioner admitted whether or not he was convicted of an aggravated felony to have sexual abuse of a minor he said no the question was then in fact presented to the immigration judge the board of immigration appeals is presumed to have considered and analyzed that question when it adopts the immigration judge's decision and that's the analysis that and the case that cited in the first footnote in the opening great and then in addition to the notice of appeal that was presented to the agency for consideration in this case the petitioner squarely the pro se petitioner squarely presented the issue as to whether or not his conviction constitute an aggravated felony there is no other way that this matter could have been presented below and we submit that the issue is in fact exhausted as far as it could be there's nothing more he could have done well there is something more he could have done although i'm not sure th the administrative record page eighty three towards the very thought of my believe it starts on line twenty one the immigration judge asks petitioner your claim of denying the charge against you i mean you should be removed from the united states is there something actually to consider considering concerning why you're denying that charge and the petition response because i haven't committed that now it's possible that reading that response because i haven't considered that actually goes is reasonably construed to mean because i didn't  you lose that equally i believe that maybe he was intending that we can't look into the mind of the petitioner at that moment but based on what the how the immigration judge construe that response to be it was equally it was reasonable exchange i think it's based on the exchange that occurred between immigration judge and station as well as the very vague claim that he made in his notice to appear basically that he doesn't believe  now if we were arguing something as a slightly different question from exhaustion i recognize that us who are arguing notice of appeal and you say ok here are the issues upon which i seek to appeal one to three is the language that i full statement that you're on to just read was all that was provided then the government's position is no it's certainly not sufficient to trigger the reviewing body to view that as a specific challenge to the cat to this particular crime being a categor very aggravated felony offense if your honor noted earlier he had gone ahead and as he indicated in his notice of appeal that he would do if you had followed timely briefs and indicated well it's not just that i'm sitting here contesting the fact that there was insufficient evidence of conviction clearly he didn't time the first time we filed a brief and in addition when the board did go ahead and give him another opportunity to do so he actually ended up challenging whether he should be removed to his home country based on two years he had of torture council to present its positions before the or it and certainly the board does give a liberal or a broader review to the documents that are submitted beyond above and beyond what somebody who is represented would get however in this case but basically requesting the board to do its not just to do a liberal or a broad reading but to actually have the reviewing body cull through the entire record speculate as to what certain challenges maybe with respect to what he generally alluded to you and then to those issues and that simply is not what the responsibility of the board is to do the board's job is not to go through the record and speculate as to what attentional argument might be and you have to petition it's actually to address the various issues that may be knows it's dependent upon the people who come before and to alert to what the questions are and unless the questions are presented with some clarity you can miss things on the other hand i'm sympathetic across a little guy who seems to have stayed on the issue that if we don't talk about a one sentence statement of it in a perfectly adequate way and what the government is asking us to do is to say that a one sentence statement which certainly comprises the argument that he's making although of course it's not a three page explanation of the argument is so poor that we should deprive him of the ability actually to make that argument  is and so without having the benefit of the board's first taking a look at this issue well the government can't really take a position on the merits one way or the other whether this is in fact or not a categorical aggravated felony offense it's something that needs to go before the board first and as the a mistreated body that has expertise in the immigration area and the i in a that's an issue that must first be addressed by the board now i'm sometimes i know the answer t agency charged with the expertise in the immigration area to be able to interpret and apply things that come out of the i think that would be sufficient to bring this issue first before the board and allow that expert that think the reason i'm asking is we've got an incarcerated person here and the legal question frankly doesn't strike me as very hard and doesn't require any facts i just follow up on one point from the opening argument the case that i was looking for that the raising of the issue in the notice of appeal itself is enough is on page two of the reply brief footnote three and it's a lot of vers back to the board when it's appropriate for further factual determination so that's what both of those cases involve and the prerequisite in both of those cases as well is that the more it wasn't presented with the issue in question and in this case that's why i say it's simply a rehearing or ization of the exhaustion argument what they're saying is it wasn't presented to the board and therefore he didn't exhaust it but if you do find he presented it to the board send it back to the board for consideration our position is that it was presented to the herman's it is the consideration of the issues raised it is the adoption of the analysis in the in the immigration judges decision and so the issue was raised the issue was considered no response necessary further for the reasons the court points out this is a legal issue which the government hasn't disputed the merits of and we think that the court would consider it you know it is a matter of california law that the board has no particular expertise in we think it is appropriate for this court the the rivera sanchez decision the corona sanchez decision those are all situations where the record has similarly indicated there is no categorical aggravated felony the underlying record is insufficient to determine whether or not on a modified