thus shift the burden to the alien at least an alien charged with unlawful entry to demonstrate where when and how he or she entered but this case is dreamily different from that first guy to thirteen in this case it's a recorded recollection of anything quite the contrary the agent who prepared it chris last day he admits and this is on page ninety eight of the administrative record he says quite expressly that he never interviewed mr torres before preparing this document and he does documents any official record of conviction secondly no official record of conviction or any part of it was ever presented to the immigration judge and we've filed a motion to supplement the administrative record with a transcript of what took place at this in a certainly before our decision and low which makes his decision rather clearly either problematic or wrong if that the eye to thirteen and the possibility of your admissions and all of those kind of squirrelly things right i don't agree with that why not well i think the issue of the portability is the threshold question here i guess it's was incorrect and it's raising an issue about whether this court even has jurisdiction to consider the issue of exceptional circumstances so i seems to me that at the outset the court should at first determine the scope of its own jurisdiction i mean yes but i think there's another reason and that is the government had out a more than fair opportunity to litigate the issue of mr gore as to portability and it presented nothing more than the unsworn authenticated by two thirteen and it seems to me  contest their evidence you had no learned present competing evidence and still the government failed to make its case and under those circumstances you i don't think it be fair to give the government a second chance to prove to portability will you see i mean you've got a problem i mean  unfair because you know as i said earlier in the transcript of this hearing the judge expressly asked the government if it had any further evidence to present this issue of the portability and said now under those circumstances now i don't think it's fair for the government to go back  know after this case has gone on for years and this guy has lived with in order to remove all of us had to give them another opportunity now to come in and try to present a better has i just don't think that's appropriate i'm going back to this issue on the binding emission and whether but the statement that we're talking about here is made in the context of an appeal from the immigration judges denial of mr torres as motion to rescind the end of censure or what's important about that is the immigrations act couldn't be more clear innocence or removal the only way you can overcome this administratively is by making a motion to resend and you do that only if i want to start in one of these three grounds so those are the only issues before the board and for purposes of the appeal that was made it seems to case you know in the court of appeals but it seems to me this is a far different situation from the cases that the government relies upon you know united states versus benson in this miami's case where its missions were made in court about issues that were squarely before the co question when they were made unlike the admissions in those cases you know mr i alan's opinion or statement to the boy's immigration appeals it seems to me it's akin to dick that in a court opinion that's what i want analogize it to you know when a court makes a statement in passing that's not and i was just the same thing is true here i mean a lawyer should be treated with the same sort of should be treated similarly to a court opinion and it makes sense to me that limiting binding concessions to statements on issues that are actually presented to the court that makes sense because obviously lawyers tend to be much less circumspect about what they say when they're talking about an issue that's not actually before the court at that time and if you profoundly unfair to hold mr torres this so the statement  because again it was it was not an issue before the board and that's what i mean certainly no way to make finding about his the portability i'll reserve the grants my time with the notion that under certain circumstances it would be trying to focus here on whether the agents opinion about what it shows is enough i suppose maybe i should ask i mean i offer with respect to remove ability or is the record here yet the government does have conviction documents i learned today just today that there are conviction documents in this case this is not in the record books but but he has a question government would have been produced the docking we don't know what happened because he didn't show what he was hearing in this case so he may have admitted he may have conceded his remove ability and then pursued another application it was a modified categorical yeah i would say that the modified categorical approach in there the category of approach all these these technical requirements for the strict requirements in the sentencing and in the aggravated felony immigration context don't that those analyses for the aggravated felony context don't necessarily apply the strictures for proving a conviction don't necessarily apply in this context it would seem to me would be the other way question really does that make a difference whether you make the transcript or only the tape and whether that's part of the record if it's true that the immigration tear gas the government do have