you're right there you may be aware this is a nice seven fifty one to sixty seat of the day he's where most of our attention an argument and with this involves is that after united states the record two thousand and two they file i assume from what i can tell from the record highly the removal and then inexplicably or maybe explicitly c i s sits on this for a good while several years no education in the meantime the relationship falls apart and it fell apart in two thousand and five and then he i believe he's den and then he files the waiver which basically says under see four to six months before i entered into this marriage and faith and it just didn't work out and here's why and the that the government can't have it three ways you can't on the one hand say you need to file within two years of the marriage your your conditional residence now did you then say with a waiver not educate and wait twelve years later and say ok we're going to duplicate this now after c i s tonight or after you're sitting in front of an immigration judge and say prove it all the way back twelve years and have witnesses and discretion i believe needs to be very carefully looked at because when the person deciding your case is the judge is the jury and is the prosecutor and you're sitting there with the argument of a bird to prove that discretion needs to be carefully managed in other words you can't and of course you have the arbitrary capricious i mean we're talking about that i'm saying things like you wait ten years  inconsistencies caused by the way that goes to whether that discretion is being properly applied and i don't believe under the i know that's how the i was and and we make those arguments are so you're saying that the but that one thing i want to just i'm saying this is not so much argumentatively but placing in context why that discretion is so important you're having an individual government official making very important decisions involving oftentimes not necessarily in this case but oftentimes the united states citizens and that person's biases prejudices life experiences and so forth can come through and if that if those biases prejudices life experiences and so forth a brief within a period of time or or or or is it something else and this court has a lot of case law if you are discussing all the different aspects claim preclusion for example the failure to even appeal to the board would be a jurisdictional bar where this court couldn't exercise protection with this court has said is there's a little bit more leeway in terms of issue preclusion and that if the specific argument that's raised for example w absolutely could have been raised number one to the immigration court and number two to the board of immigration appeals and then you have the government both in our brief and today raising what this call this court call the affirmative defense of exhaustion specifically says this court laster stiction like to review that credibility determination i would also although without waiving that exhaustion argument i'd like to address a little bit you're one of the yorkers that raised your today the fact that someone has to wait to make their case that's at some level the nature of the business but also point the court to the fact that some of the delay in this case was actually due to the girl all those delays he came to court in two thousand and eleven much closer in time to when he was married and he asked the court through counsel or continuance because is star witness his ex wife was not available a year later that's according to what was said in the records counsel but that's not something that the government should bear the burden for when this case ultimately gets to immigration or in two thousand and fourteen counsel for mr carroll well lou offers yet a different explanation talking about how there was maybe something related to the scheduling of the case in two thousand and eleven so the same attorney in two thousand and fourteen offers a different explanation than she did on the record in two thousand and eleven in addition your honor we are not talking i want to to the extent that i can assure the court we are not talking about questions that are asked what did you have for breakfast on july seventeenth two thousand and three those are not the basis for the decision here the there's a couple of even us even if this court does not dispose this case based on exhaustion and we get to the second jurisdictional basis that's the two sixteen c for statutory reason which this court recognized in the first leanest which says very this petition i would ask the court when it reviews our brief to really focus in on this pardon issue because i do think that this issue of burden is not clear in its task and i do not think