again as to whether this was in fact and aggravated felony then the next issue would actually again would possibly be the while factors as well right now this is a case let's turn to i think we're familiar with fact this is a case in which the board actually and the i j a actually did the francesca factors they did what is our jurisdiction under these circumstances as i read our case law i think we are limited to just seeing if they applied the correct legal task not whether it came out correctly is do you agree with that our that would be your  whether one of the things in this particular case in regards to it being an aggravated felony in this particular case i don't believe that there's an actual aggravated felony to begin with the first of all whether it even the  the particular serious crime even actually applies especially if it's considered to be an aggravated felony whether the plea is to felony assault with a firearm and shooting at an occupied vehicle so aren't those aren't those who crimes that fall within the statutory definition of an aggravated felony we're going to i don't think that's actually the that in this particular case i believe the actual it's i'm s that an aggravated felony under the list of aggravated felonies and statute well because i apologize for looking at the other let alone that it's because i believe in this particular case in order for it to be considered to be a aggravated felony it would have to be a crime of violence and in this particular case is supposed to be akin to eighteen us c sixteen a or b which is i think the federal counterpart to this particular crime and in order for it to be a aggravated felony would have to be an intentional crime in other words it has to be a specific intent crime to get what you know before you go on too far on this one ok is this an argument in your briefs it's not your honor aggravated felony was in the way in our brief however we continued that we didn't weigh that issue when our brief here but point before us in your briefing on your petition for review i don't find any argument that the underlying have to at least tell us put that argument somewhere in your briefs about why this underlying felony isn't an aggravated felony we would your honor however i think in our particular grief brief and i don't know if it's what we address was the fact that we didn't weigh that issue that was really what we are getting our brief in the fact that we didn't wait issue as to whether his quality he was not qualified for asylum because of the fact that he was convicted of an aggravated felony that was and i understand you made out of waived that sort of sympathetic to your argument that you didn't waive it before the agency i'm still not sure how not having waived that you've made it to us whether you haven't weighed in front of us that's that's my concern so i'm trying to look in your briefs to see where you're making the argument that you're now make well i don't think i'll wait i think by arguing to the court that we didn't weigh the issue in that he is in fact eligible for asylum i think and the only reason that he wouldn't be eligible for asylum at least based upon what the board of immigration of appeals stated was the fact that he was not he was that he was convicted of an aggravated felony doesn't have to be a particularly serious crime  factors were addressed adequately of course we argue that but don't we that's the question i guess i ask you to be getting isn't that where our jurisdiction stops there's always we they apply the correct legal test we don't get to decide court to make a determination as to whether they erred or their abuse their discretion but on this record they applied all seven i think of the factors they may have goofed they may have messed up they may have gotten them been the world's worst decision but once they apply all seven doesn't our review end well i don't think they applied all seven factors in the brief from what are our recall i don't think that all five were actually done i don't think that a from what i recall and excuse me if i'm wrong is that i don't know if even francesco was actually mentioned i think that they consider consider the the n a the noun factors and not necessarily went through all the particular factors of francesco i don't think  so because they did not fully address all seven of those factors i do not believe that it was adequate counsel i wonder if you would like to reserve some of your time for a case a screwdriver as an initial matter petition was found removable as an alien convicted of an aggravated felony in this case so your honor is correct the criminal alien bar once again applies it comes up a little bit differently in this case because the government in this case preserved its argument regarding the appropriate application of the criminal alien bar this court obviously the court's precedent holds that there is jurisdiction over more than just constitutional legal claims when the bar applies this court has held that it applies to deferral of removal under the cat and the government position is that is not actually correct reading of the statute right now where it is president but one of the things that we argue in our brief is that some point it might be appropriate for the court to consider this awful panel and i would respectfully know that perhaps the time is may be approaching for that given that every other circuit now to consider the issue has come out on the other side that a member of this court judge graber has written a concurrence explaining how the court has gotten the issue wrong going back to reconsider the government certainly submissive that is the case your honor so starting with the solemn issue here your honor is right that he she was not exhausted in the court therefore lectures direction but i think i could put your money your honor some mind at ease about that issue because this court precedent has already held in us against greater that this exact statute two forty five day one is categorically a crime of violence under eighteen's title eighteen section sixteen a which is so it doesn't implicate sixteen being under the mine the  asylum your honor of maybe asked a question about i just want to clarify for asylum purposes for a particularly serious crime determination the if the stat if the criminal offense is an aggravated felony it's particularly serious crime for asylum perps right  i'm not getting there and just as petitioner conceded that the factors were appropriately used here and your honor is correct that's where the court's jurisdiction stops there the weighing of the factors and the discretionary factors is a discretionary determination over which the court  electors diction because the criminal alien bar has been applied so there's no jurisdiction of the holding claim either yes well as i understand petitioners argument in the brief and wasn't really discussed at oral argument it's a little variation of that and because under that nice circuit precedent there is discretion to review merits determination of the withholding if the if the i j a does not just does not decide the particular serious crime issue and passes over that issue and says but you even if it is a particular serious crime you lose on the merits and nice circuit said you can review that that's not clear it has maybe suggested that in but i think the exception only applies to deferral of removal under the protection against cat and not all the way to withholding of removal in the withholding of removal context which is again i don't want to harp on the point too much but that's why the government feels the court has this issue wrong because now state of the president in the ninth circuit so in this case it's a little variation of that the i j a says particular serious crime statutorily analogy of all and even if i was wrong about that you lose on the to address the alternative merits based part of the petition the government would respectfully know that petitioner has waived that argument is brief and he has not contested the alternative withholding of withholding of removal claim on the merits in his opening brief so that issue should be directly reserve that for potentially a full panel at some point sure but yes you're correct it's i don't want to give the court too much deja vu but it's a very similar to the previous case where this petition has to show a fifty one percent chance of torture and again the cell door in government all the evidence that we see shows that you know well it's certainly not a perfect place i wouldn't nobody would argue that it is the salvadoran government isn't consenting or acquiescing to torture in fact they've prosecuted people who have been involved in isolated cl understand your argument correctly said even under what you consider the ninth circuit's mistake in interpretation of our jurisdiction respectively are we should we should we should dismiss this petition with with regard to the withholding claim with respect to asylum and withholding of removal with kat the court would have to deny that portion if it were to stick with the current president as it is i was just going to ask for support thank you so unless there are any further questions for me are simply thank the court's time and i'll see you again tomorrow factors were actually addressed i do not concede to that i must concede to the fact that there was that finding however basically the i j a basically claims that the term imposes extensive therefore that means that his crime was particularly serious you really didn't go through any real analysis is neither of them aggression judge or the board of immigration appeals actually went through any really analysis of all the francesco factors it was pretty much just based upon the nature of the crime and the time and the term imposed that was it and so what i submit to the court is that based on the fact that those those factors were not properly addressed by the board of immigration appeals or  the the immigration judge the matter should be remanded so that all of the factors on of the wireless should be adequately addressed