not these issues were properly raised and preserved both to me before the v r a and certainly before and before us there's reading your opening blueberry the entire discussion of the modified categorical approach that appears in the reply brief is that in the one paragraph paragraph see on page fourteen that raises these issues so i'm troubled that the issue really hasn't been conclusion that his crime was one involving moral turpitude so however many exhaustion of the richer they are again may not have explicitly been presented with that argument in front of them  there is an effective assist of counsel that we go forward certainly when i've gone through the record and i've gone through the the convictions and my due diligence occurred to me that there was  we have to hold pro bono counsel to the same standards we hold anybody who appears before us and there is a wealth of jurisprudence and then effective assistance relating to immigration lawyers who don't do their jobs in front of the immigration courts and before the b i hey and we don't just treated as a matter of of waiver of our requirements there are some fairly strict standards and if you're not familiar with the jurisprudence then i'm afraid that that doesn't speak well of your research into the requirements of representing people in  concede that the issue was not exhausted before the b i exact correct i'm sorry do i understand correctly that you are conceding that the issue of moral turpitude was not exhausted before the b i a i think that's a fair representation and when when the appeal was made to our court in the initial opening brief was the issue of moral have really two different prongs here before we even get to the modified categorical issues that i know are important to you and your clients if yours agree you can address those issues that would be preclude us from reaching them sometimes cruises you're right in the second degree by prison in the county jail not exceeding one year under state prison and twelve twenty seven eight two if the permanent stop time rule contained in part b of twelve twenty nine big one may be retroactively applied to concepts it's just a cool of the seven years of continuous residence after only four years good morning and they please the court my name is patrick glenn appearing on behalf of responding united states attorney general michael mukasey your honor the central issue in this case is whether remain to the board is required and the government contends it certainly adds in two application of part b of the stop time or would not be in for mr bill so the board needs to decide in the first instance whether petitioner was eligible for discretionary relief at the time where it became affected there has been no agency determination on that point in the first instance so the first thing discretionary decisions of the board that we likewise are barred from construing the legal framework within which the discretionary decision is made that correct no no not at all your honor if retroactive it's reliant on our two cases one saying that it depends on what the status of the particular petitioner is correct out of this case what would what is that that would make him eligible or circumstances so the fundamental question the first one before the board would be what circumstances does this case presented on the record the prisoner by this case what is is that or are we talking about the crimes of moral turpitude as to whether those are discretion petitioner should be granted cancellation of removal that's notwithstanding the statutory construction issue remain and will still be required in this case because there's been absolutely no agency determination regarding the discretionary however and poorly regarding the crimes involving all turpitude as this court noted in question you have opposing counsel these issues were not presented to the board in the first instance they have not been exhausted alternatively petitioner has not adequately presented them to this court in his opening is this court is not even a very recently about the stance or in my direct question though that is would it be open if we say it wasn't exhausted would it be open before the board in this remaining proceeding for counsel to raise the modified categorical approach work with the government to prove that these were in fact crimes of moral turpitude petitioners counsel could certainly request additional briefing on other issues how the board would ultimately deal with those issues i think i certainly can speak to he could certainly raise those in briefing before the board but at the same time those issues i think should be disposed of by the courts and then there are exhausted and alternatively they it's not disposing of them on the merits of saying we don't reach the merits if we disagree on the waiver the what would we do then decide it was this in the government's position on this is my reading of that case suggests that if the b i a addressed the issue of moral turpitude whether or not it was raised that it can be deemed exhausted the waiver would not all to really affect movability the board didn't address the issue of whether a clear and convincing evidence supported the order of moveable or whether the crimes were in fact crimes involving moral turpitude so i think in this case although i understand what you're saying about so turpitude that rendered him inadmissible under that section that seems to me to have addressed at least the issue of moral turpitude in connection with that particular crime if you disagree with that have you can have a person entering a vehicle without any intent to rather with intent to commit a grand or petty larceny or any felony burglary without a two thousand decision of this court and this you're saying that the facts of that case i'm not sure i will either i don't remember cited in any of the briefs but you're saying the facts of that case that this court held on all fours that for fifty nine any conviction under four fifty nine is per se a conviction of a crime of moral turpitude not under the categor approach no it didn't actually didn't address and it simply noted that vehicular burglary which is which is part of the aspect of burglary criminalized under section four fifty nine would qualify as a crime involving moral turpitude and that the court anything that would constitute moral turpitude of the minute order no indication whether he intended to commit larceny or another felony under the two thousand conviction that says an information entered the vehicle that the doors of which being a lock with the intent to commit larceny and any felony but it didn't say a crime again of moral turpitude in the abstract of judgement of rape pled guilty there was no indication whether he intended to commit larceny i i'm appreciating your help how do you get there for the ninety nine long one nine hundred ninety three crime or the two thousand crime you can show that you have the intent crew tend to take property based upon what is in the record what's in the record is a complaint with the