have failed to apply the controlling authority and in cargos in cardoso this court had determined that where the underlying where the key pled to reduce it to california to health and safety code eleven three sixty when he was reduced to eleven three sixty that is a controlled substance offense however the agency acknowledged that despite the controlled substance offense he would be eligible potentially for adjustment sat or just an a status along with the two twelve age waiver so where in the original basis of the removal order was vacated he had become eligible for rel in criminal court the california court recognized that there was a constitution a defect the california court had applied the forty under california civil code for seventy three recognizing that there was an error the petition er argued that in the record in his motion to reopen that the california court had recognized that there was a defect in there in allowing the petitioner to correct that defect moreover the agency order the proper course of action would be to reopen first we have whether the agency abused its discretion in denying mr senos request for a final continuance to pursue cup post conviction relief and then we have whether the agency abused its discretion in denying his untimely motion to reopen i think just conceded the continuance is that correct he said you concurred so we're just talking about the motion to reopen absolutely your honor with regard to the most and three open it's undisputed that it was  untimely and he did not allege any exception to the timeliness requirements and he was facially ineligible for any of the relieve he sought at the time i'm going to address what opposing counsel was just discussing with regard to cardozo the initial issue is that this is not a departure of our case titian are erroneous lee argues that the board denied the motion on departure of our grounds and that that line of case law is implicated order says that the reduction in his criminal offense may potentially make him eligible for a waiver under section two twelve age of the act he remains ineligible for adjustment of status as he is no longer present in the united states i think that's what you're opposing counsel was referring to right with that statement is a statement of eligibility for the relief that he's potentially seeking the physical presence is a requirement for adjustment of status as it is a requirement for cancellation of  you had not yet not had any relief applications pending at the time of the first the first board's decision he hadn't filed any post conviction relief at that time the conviction remained a conviction as far as we know and he did not have a stay of removal so he was lawfully removed in twenty fourteen or it is simply referring to the fact that he was removable on independent grounds aside from the criminal grounds even if his criminal conviction was eventually vacated he conceded that he was removable as an alien who entered without inspection so that's why the board discusses that in their decision that even if we we maintain that it's not a guilt vacated place scuse me but even if it was i was just saying that he still has an independent basis for removal that he conceded he was he entered without inspection  under that basis he was removable at the time so it was a lawfully executed removal order and here the board is simply looking at an untimely motion to reopen they're not saying we lacked jurisdiction because of the departure of our they're saying we could exercise or but we choose not to because there isn't an exceptional circumstance the relief he seeking is no longer available to him he could apply for consular processing from abroad he still has an i one thirty an approved went thirty and there still is a way for him to attempt to gain immigration benefits but the benefits he sought originally angele adjustment of status or cancellation of removal require physical presence in the united states so it's our claim or are we're maintaining that the departure part is not implicated cardoso isn't relevant but that this is a simply an issue of sue a spontaneous authority on an untimely motion to reopen and this court has found jurisdiction to review sue a sponsor denials when there is a legal or constitutional error made by the board but mr c no hasn't demonstrated any such error we said that you know that the the removal order is lawfully legally executed because he was removable under independent grounds aside from his criminal convictions he also didn't provide any did he have more than one we have his prior counsel's brief to the board and in that brief to the board prior counsel states that he has several criminal convictions but argues that but she does not list out those convictions she says he has several convictions but that she believes he's only ineligible for adjustment of status based on the most recent conviction for possession of intent under section eleven three five nine of the health and safety code so it was required prior consuls stated there were several convictions she also actually stated that during one of the the removal hearings she told the judge that you know but for this conviction under eleven thirty five nine he would be potentially eligible for adjustment of status with a discretionary waiver under two twelve a and you know respondent isn't conceded that he would be eligible you know he might be eligible he has we don't know what criminal convictions he has we know that if he still has a conviction under eleven three six zero as a of the health and safety code that that's still controlled substance violation it might not be trafficking it depends we have to look into that issue further the agency would have to look into it but he still has a controlled substances violation and according to his fire counsel he has other several other can convictions that we don't know about because the documents are not in the record we also don't know what the underlying basis of the post conviction relief is despite the fact that counsel has said repeatedly there was a constitutional de facto or there was some sort of substantive defect there is no explanation and we don't know anything there was ample opportunity to present a motion or some documentation other than the minute order from the court court but there is nothing other than the minute order except for page one eighty three of the record there is an order from the criminal court that mentions a motion to modify sentence so as of a month before his final hearing this is in august of two thousand and twelve there was a motion to modify sentence pending but there's no indication there was any motion related to a constitutional defect or substantive defect in the underlying criminal conviction have you looked through the  documents attached to them the motion to supplement the record yes i do have a position on that well i think our original position was that they are not properly before the court because the agency  first attempts to review and that's why i believe after that to share filed a motion to open to the board so that the agency would have in the first instance the opportunity to review those documents authority they could parole him into the united states that would be at the discretion of the agency but again coming back around to the original argument it's a suicide bomb say discretionary decision and in this case the board felt that there wasn't an exceptional circumstance that they didn't feel again and this is petitioners burden it's petitioners burden just so that he warranted reopening he had the average of two to present whatever evidence he had to show that he would be eligible for some form of relief upon reopening but he only provided the minute order he provided no argument that he would be eventually eligible for some form of relief he didn't explain like what the basis of his waiver would be how he would qualify for a two twelve age waiver  eligible and again this was his burden to so and so in this instance like i said that the board was unwilling to exercise it's fun to do so well they do have the authority to parole somebody and if they decide to reopen in this case they decided that wasn't warranted all right thank you counsel k thanks lawful however the basis of the removal order were on two grounds one ground was that the petitioner was an person in the united states with without permission in present without being motion the claim is a challenge to it the board not so a spontaneous real coming yes and that's right i thought we had very limited that at one time we said we we could ask them to state reasons but here they they gave some reason so i'm having trouble understanding how we can see if there's an error and not su petitioner in the ministry to record a page twenty one or certain that this motion was being filed in this time because a conviction had been vacated further the petition r argued and supported on appeal that the bait that the agency's pattern in practice has been that where a conviction is vacated it is it's pattern in practice to find an exceptional circumstance did a step a certain exceptional circumstance the agency i believe overlooked that point the agency in its in its decision stated that it wouldn't exercise its to a spontaneous authority to reopen because  versus the attorney general for the proposition that the b i a has consistently helped to it's pattern in practice that where you have a conviction that's been vacated that in essence is an exceptional circumstance  if the execution of removal order is unlawful and the removal stands counselor processing will be hindered because he would require a waiver of a waiver of force and admissibility because of the removal order removal the removal order stands and then he is prevented from adjusting status suggesting status and concert processing are two distinct forms of relief and counselor processing has many hurdles that he wouldn't be able to overcome