correct our first reply brief second reply brief at page six which states in their the president's case matter vasoline twenty three and decision six ninety three was promulgated the month before the i j s decision actually was almost a year after j s decision immigration judges decision and finally what we try we will try to accomplish today is to first of all have this panel understand that the board committed legal error which lockup preparing the petitioner two hundred to confront criminal charges when he was not yet able to do so you look like you have a question well i'm trying to understand if we don't agree with able to rule on facts not dealt with below as a matter of first impression before the circuit courts review review such facts and exercise discretion on us facts is purely the question and the legal question h investigate criminal law nothing to do with the expertise of the department of homeland security in this case and it also flies in the face of preexisting legal precedent which found that the bo and that we should just decide the question as to whether your client has served five years of imprisonment or not i'm arguing both ways neil turn to just deny i would certainly prefer that this panel rule as a matter of law on the issue because it is something outside the expertise of the board but you know any event another troubling issue about this case is that the regulations involved were dealt with is if petitioner was submitted for the first submitting for the first time previously unavailable evidence the evidence already on the record would trigger the immigration judge to make all available rel understand why it's well so because the me nature of this question is there a difference between when they ate it and it is released early in other words does it get more than five years it is released early and the situation we're a defendant it's more than five years but it's prison the congress set forth time served in prison five years time served and confinement and other restrictions on liberty which are addressed in federal definitions dealing with a conviction and sentencing sentencing might involve confinement might involve other restrictions on liberty but it is not imprisonment time served in prison is just not easy an apples and oranges partly makes a difference to your client nevada said that your client was going to get five time is because of the supposed dangerousness the seriousness of the of the crime and so that's reason why we've had this rule insofar as the five years is concerned but in the situation where the judge in the vadra makes a determination he now he's never had a chance to have addressed a number of issues you know what i don't think that you're going to get a decision i think it's highly unlikely you're going to get a decision  he's not entitled to relief that's this point there is nothing for him to brief the board's decision is not he hasn't shown that it's wrong in fact you can contest that and we point out our and if this case is ringing out to the board on an issue already decided by the board correctly the only thing you're giving him as an opportunity to brief a moot issue a file a frivolous group that's my point you're on well we mentioned bri every time we mention blake whoops we forgot as you mean they came gabrielle ski which looks not at grounds of the move on which include aggravated felonies but also grounds years if the marriage that makes this different yes i just met through the marriage absolutely which is why the judge was compelled to explore these issues with the evidence he had before him but then we're getting back to whether or not he gets to proceed the judge said no when it went no further than the board just took it sideways rather reasons we have to return to this issue and i would hope this court would do so case i i would i think allow him to just that just after the government has been sitting on this immigrant visa petition for over a year postings your regulations it got very excited about one and got rid of the case it ignored the one that is directly on point after it dresses the issue of whether or not he spent five years in prison ok thank you thank you