there it was the non citizen who relied on the regulation that provided to his order of deportation would not become final until he overstayed his voluntary departure period and reviewing his motion to reopen the  that a regulation may not serve to amend the statute nor add to a statute something which is not there to build was represented by counsel yes here during some some proceedings become final until they leave the country but what's wrong with the waiver becoming effective upon it be regulation states that there is a regulation eight c f r twelve forty point eleven states that the immigration judge shall inform the alien of all of his or her apparent billet mr belton contends that he was not informed of all his  especially after indicating that mr bell did not once the police were called for a domestic violence somebody had to go to jail and he was not going to leave his children without their mother mr to mean that where the record failure reviewed by an individual who was intimately familiar with the immigration laws as the i g is no doubt it confoundedly are it raises a reasonable possibility that a petitioner maybe algebra for relief meister advised the alien of his possibility and give him the opportunity to develop the issue mr but i was not given that opportunity and your argument that any time there's a criminal conviction enough to warrant reexamining the conviction is that i'm not quite clear how your argument works out because this that mean that every criminal conviction is challengeable if the defendant makes a casual statement i didn't do it no your honor but but it is important here to recognize that the statute itself provides an exception specifically for them convictions of domestic violence and the case law suggests that if the i g are to be intimately familiar with this case or with this sort of law that they should have recognized that a waiver exists for convictions of domestic violence as was mr b also not informed of the other form of voluntary departure which he could have been available for once he said once he told the i j a that he did not want to waive appeal it seems to me counsel for you to prevail in this case we don't need you don't need to hit a home run that you started with i'm from san diego some a part you know padres not a lot of home runs but it seems to me that the single you're looking for is what my colleague just raised the idea that the t p s discussion with the with the i j a was insufficient  that correct that a few prevail on that that the that your client was not properly advised of his potential relief under g p s at a minimum this case has to go back to the agency is that right yes your honor that he was not fully advised of his apparent a further questions i'd like to reserve the remaining time may please the court my name is jesse carlson on behalf of the government your honors in this case the board appropriately and correctly concluded that petitioner knowingly intelligently and voluntarily waived his right to appeal before the decision petitioner was properly advised about his eligibility for relief record before the immigration judge petitioner admitted that he had two misdemeanor convictions he admitted that he had a conviction for dui and he admitted that he had a conviction for domestic violence offense so well the record shows  he was convicted of domestic violence that's correct the record doesn't show anything about the other offenses doesn't other than what he said well certainly that the testimony of petitioner himself was considered by the i j a and the  the issue with regard to the t p s if it but if the i j a believes that the individual had two misdemeanor convictions that issue would not have been readily apparent at the time of the hearing that's also something that counsel for the petitioner could have identified there's actually nothing in this record there's no motion to reopen or an ineffective assistance of counsel claim that has been made but is there anything in the record to support the idea that he in fact was convicted of a d maybe he was confused and thought he was arrested for dui and got that mixed up with a conviction like i said that i don't believe there are any actual conviction documents with regard to the dui but there's certainly his testimony making that statement so what would the harm he to have to go back and have the agency actually pull up the records to make sure that he in fact was convicted of a deal why it wasn't simply him being arrested for it for example well in this instance your honor again petitioner had coun he had the ability those things could have been thoroughly discussed and presented by counsel before the immigration judge he had several hearings before the immigration judge where counsel was present these things were discussed and there was an opportunity to make that claim so it's the government's position that that's not necessary in this case he is carson i read the record the hearing the transcript of the hearing in this case and they dragged on for an extended period of time his counsel kept changing and the i j from one hearing to the next couldn't remember according to the transcript what had transpired at the earlier hearings so i don't know how he could have possibly alerted this petitioner to the possibilities that were out there from reading that transcript perhaps i misread the transcript well your honor there were i think i believe that his counsel was consistent for at least a couple of the hearings and during those times you know she there were continuances so counsel could become familiar with the case certainly  there i believe there were a couple of instances but counsel did have time there was sufficient time to become familiar with the facts of the case and to make you know to make request of the i j a and to present a case that would be you know sufficient at that time you know we're looking at two different situations there was actually with regard to the waiver counsel actually had time they took time off the record to thoroughly discuss that issue as well as to whether or not  petitioner wanted to waive his right to appeal so there was this was a situation where you know there were also no requests for additional time that counsel did not make any requests to take additional time to contemplate the voluntary departure option which you knowing and elegant understanding of anything i would be astounded on the basis of this record if you knew anything that was going on but this is pretty typical well your honor the of the cases that petitioner cites in his brief and involved situations that were were much much more they were very different in the situation they involved individuals who did have counsel throughout proceedings and so some many of those cases address  waivers of appeal for individuals who never had the option of talking to counsel at all that's not the case we're dealing with here we're dealing with a situation where there were there were ample hearings there are a couple of different hearings there was time to talk to counsel so we do you know as the the case as you probably reviewed it will demonstrate there are situations that you know were really and you didn't have the opportunity or else situations where i just didn't go into as great a detail as this i j did and providing in the options to the things he couldn't hit contemplate with regard to relief just i was curious on the t p s question i see in your brief on page eighteen you talk about how he wasn't eligible because he had these two misdemeanor convictions is there any other reason why he would be eligible this assume the dui conviction it was only an arrest and not a conviction is there another reason why he would not be eligible for t p s or is it just this those two convictions your honor i believe you know what our brief states is correct that i would i think any other bars to his relief as far as you're concerned your honor there might be other requirements that are not apparent on the face of our document in the record that's a you know a relatively specific to form of relief and so i would i would rather rather not say that there's that project your honor yes if fifty one i believe us that would have been the government's counsel i believe he has a dui in two thousand and one was a reference i think there was an additional perhaps page forty nine and the record back in two thousand and one i had a dui but i completed everything they asked for right so so that might and that's why i guess to some of our questions you could have a situation of someone's arrested for dui but if you complete some program no convictions actually entered correctly that that information is not in the records so if and if that were the case i know there's a lot of ifs in our question today but if that were the case then if there actually is no conviction for d then the argument that he would be eligible for t p s on page eighteen of your brief would turn out not to be correct in this case your honor i wouldn't want to go that far without to make the agency would make other determinations but based on the on the face of our brief that that until after there was a conclusion and talked about post conclusion parker couldn't yes your honor should the i j explain that set of options to your honor see anything in the record where the i j a even gave him that option or instructed him on it your honor in this instance there are different different benefits and advantages to different kinds of voluntary departure in the situation while the i j did not indicate the distinction that i j did at there's there's an issue with regard to timing and so with regard to the pretty conclusive and voluntary departure it has to be the individuals have to be apprised of that early early on in order to be eligible for that so in this instance the i j a did make sure to apprise mr beltran of that opportunity early on now with regard to that there are advantaged advantages to taking that earlier form of her departure and the situation that would require there is no bond required if he were to take the other option there would have been a significant amount to be paid in bond and as our you do agree that was an option  was not constructive about well yes that's that's a yes yes yes your honor that is another option however there are as i mentioned significant there are reasons perhaps why the i j a might have focused on the pretty conclusi well your honor and in this situation because there there was a condom the discussion was originally on craig conclusion voluntary departure and that seemed to be based on the record something that petitioner was interested in so to the extent that there was did tell him about the initial form of voluntary departure and that he didn't tell me about post inclusion the record doesn't reflect anything about post conclusion all records shows everything the i j c correct so has been raised with regard to the statute i just want to point out that in our brief does point this out as well that our our contention is that the statute is ambiguous and that really the question to be able to be asked with regard to that provision is whether the statute doesn't speak to whether an alien is actually permitted to seek administrative review so you made that point your brief hopefully if you have do you have any further questions on that issue for me if not i'll go ahead and and take a seat thank you so much yours g didn't know about the dui conviction the t p s discussion isn't page forty three of the certify record and the dui conviction conversation had been in page fifty one of the for certify record  additionally in regards to voluntary departure the argument the government says that the i j said it at the beginning of the hearings which he did and that's when mr bolton was not represented by coun money together to pay for another bond and additionally he made mr vote than paid for his way back to el salvador a condition to grant him voluntary departure and thereby to the