intervening case law from the th circuit precludes that argument so i just wanted to dispose of that ice cream you just keeping to raising it for purposes in case you decide to apply for a search for candidates as to when this may or may not have been appropriate but when we certainly look at it it's actually quite a mess and i want to just give a brief overview of that because i think that's going to be critical to the equitable toing struck stream trying to figure out what in the world to do with a modified categorical approach when can we go from step one to step two and through two thousand and thirteen we've got the calm and you can see the supreme court really strain with the circuit courts and all the other courts below them trying to clarify this issue and as somebody who kind of grew up during this saga it was interesting to see how it was it was almost like the supreme court came out and said it and then they said they said it again and then they would say and we really mean it this time and every time they would announce something new the circuit courts would taken as what are your what is your theory of our standard that we would apply in this case up well i think that the standards as force of the brief i mean it's  immigration judge and so the facts here really are surrounding dates so we've got the filing dates and we've got the dates that the decisions the precedent decisions that control the case law so those i mean really there's not a lot of facts here the facts really when we filed the motion to reopen d and when all of these cases came out of all the or diligence throughout the entire twenty years that his case was closed really were what we're really focusing on and i would submit is you know in two thousand and seventeen with the last the board of immigration appeals where they strained and really resisted it to a large extent if they're applying and recognizing the holding it really went back all the way to with you that that the matter short is two thousand and seventeen is the point at which were looking he had ninety days to file a motion to reopen and still a year and a half of the six case i recall thinking i didn't even know if this was the end of the circuit courts were still a mess this is the day was still unclear i didn't know nobody really knew what was going to come of this and so the question arises as counsel i mean you've got to think about this in terms of reasonableness and here's a live tourney talking who understands these issues well litigating following this from day one we weren't sure d whether or not the board had issued a final interpretation on this in sort of you have to have absolute certainty or do you just have enough to put someone on notice that they might have a valid argument media have to have a supreme court decision on the exact act situation well according to the in practice the way it plays out is although in two thousand and thirteen montreal came out in the supreme court and it cannot essentially said this is what we mean gosh darn it the reality in practice is that the board of immigration appeals doesn't apply those decisions  and until they've got a case directly on point in they will resist and argue that until and unless there's a case directly on point to your statute they really don't apply those and so here again two thousand and seventeen in the last chapter is case where they really struck not a not the exact statute but a statute was very very close and that the issue really really was narrowed they've really narrowed it down so here we are actually mister a leave us came to me we filed about three months after he came to me he found out that some or he had heard from some friends that take the type of this lawyer there's apparently some changes in the law and so he came as soon as he heard that you can talk to me the delay to file was actually our our firm's decision because we want to you know better feel that we had a few more i mean it's clear from the briefing we cite to the cases there it's clear that this was an absolute mess thankfully today it's clear but i guess the point i want to drive home is that it's me it would be reasonable for us to hold mr or leave us to a higher standard terms of diligence than most attorneys at the time could who would even be able to have here to it's really difficult for a non citizen to understand that they were illegally deported and follow the case law closely especially when the case is in dispute all the way from the supreme court to the circuits and especially down to the board of saying that was illegal i you know at the given an easy enough question the answer yes or no according to be a case law or no your honor but arguably under supreme court essentially the distinction that raises for that what is that what could be and should be reviewable or purely questions of law right not how the facts mean apply but questions of law for particularly standards that the board uses and in fact there are parallel standards that apply in equitable tolling in fact there are two different tracks and that is i understand your argument what you're arguing is that the board misapplied those standards that they didn't are that they didn't define those standards properly for example when when they talk about what an exceptional circumstance is or gross miscarriage of justice fundamental change you are these are legal terms that that circuit courts can and should inform and see citizens on now what now how that agency applies those turn the facts to those legal technical terms that's where i think that they should have discretion and it would be difficult for the circuit to provide a review but mister leavis is motion was untimely and he failed to show that he should be excused from the ninety day time limit for a motion to reopen there's no question that his motion reopen was out late in this case the courts are the board's exercise of its suicide on to a authority the court doesn't have jurisdiction to review the agency's discretionary determination that mister leavis didn't present an exceptional circumstance or a fundamental change in the law and the let me ask you this if the argument is that we're dealing with a pure issue of law not an area where the board has discretion and so for the whole for the the board's decision that's that we're reviewing so in this case if you look at the race vargas decision what they found was that the board the reason why they reversed or they sent it back argue that the court doesn't have jurisdiction to review that because unlike the race marcus case the agency actually examined his claim and they got to the merits and they in their exercise of discretion they found that he had immigration judge said in this case that you know it's been twenty years he was removed in nine hundred and ninety eight so it's over the course of twenty years the these cases have their interpretations changed over time elements when you when you're looking at these criminal statutes so it's it's just been clarified over the past twenty years it hasn't been a fundamental change and this is something that the both the immigration judge and the board they did they determine that it i think that it's just what you can you can look at i think that in this case it was it was a discretionary determination by the by the board that it wasn't going to look at what the law of the board  in that case it sounded the board it didn't have jurisdiction to review the boards that ought to sponsor reopening because in that case the board didn't event a mis understanding of its discretion and it just determined that there was no extraordinary assume a sponsor reopening it said that the court didn't they exercise their their discretionary determination the agency didn't say that you know we couldn't look at it they actually looked at the merits of the of the motion targets case this isn't a case where the you know the board an immigration judge didn't act they did act and they did exercise their jurisdiction and they just determined that it had not in a fundamental by saying that that's still raises the question so we're not looking at whether you needn't long as they make a determination it doesn't matter what they say you are you i mean you're going off and about oh well they said it was incremental and demagogue but i guess your point is it's an r and i guess i'm trying to figure it out but as long as they needed to determination they exercise their discretion it's not reviewable no matter what the ground was or maybe is there a case where are they exercise their discretion and they say it's incremental but it's the men all right in so i mean i'm trying to figure out what our changed recently and i think the raise vargas case is an example of that and i think the holding the case was this court found that well the the if this was based on a they were going to the agency didn't even exercise mister hurley is the determination whether it's fundamental or incremental a question of law or question of fact that would it would wer was later on so it's kind of it's kind of a both it's not strictly just a question of law i think you look at how the order in that the courts looked at certain issues back before and then you compare that to now so you just look to see if it was changed that's what and that's what the the agency did they kind of they looked at how it was looked at back in the day and then they compared it to now and they said well this it's there been incremental changes over the past twenty years since it was removed and let me follow up with one other question is the answer to my st question whether it's question a lot of question act in terms of whether we have jurisdiction which i think is what judge i was getting that i would agree because again this goes to the super spartan i think the the when it when they found a motion to reopen the the board exercise its discretion and considered everything that the facts of the case do you know the law and this goes really one of the st decisions where this court got to apply kaiser and realized just how profound kaiser is and how much i how little deference keyser affords the agencies when