authority of the board of immigration appeals is constrained by its own regulations to deciding quote questions before it at no point in time did any party involved in this case not the government and not mr  asked the board to decide whether or not his original cancellation determination should be really waiting in light of his post cancellation convictions yeah but the definition of questions before it may be narrow and may be broad you've got a narrow sunk some meaning and of course as you say there are a narrow and there of you have broad view but the broad view endorsed by the government isn't required by the regulations in any way well how about is it for been by the regulations you know i don't think you need to convince me of that right regulations to say that the board is limited to questions before it in the kind of normal process where a case goes from the immigration judge to the board but that once the board has issued a final decision on a case on the questions before it it could later then exercise it to a spontaneous forty to reopen that case and it would be completely consistent with the regulations and also consistent with what the constitution requires under the due process clause what about further down in that same regulation that you're talking about board so an example would be imagine this case went straight through on cancellation and that the case got before the board and the board said perhaps judge richardson got this right perhaps he got it wrong there some factual ambiguity about some of these convictions so we're going to send provisions aren't meant in any way to be in conflict with the questions were at language in the earlier provision and all they're doing is saying what standard of review should apply to the questions before the board it's really i really don't think it's a complicated the government's kind of muddied the waters by pointing to these other regulations but if you believe the government what that means is the questions before it language means nothing the board can address any question at once at any point in time no party has to preserve anything no one can forfeit anything and the to article three courts well managed agency weaver is a pretty discretionary doctor and we will occasionally excuse people from waiver where it seems that there's been no serious prejudice to the presentation of the question and so on why isn't it within the discretion of the board to decide whether something has been waived so long as a substantial unfairness in violation of due process is not worked you are the first answer your question i don't mean to sound does not strike me as an do expansion of the notion question before it the trying to figure out of his guys to get cancellation of removal he is convicted of crimes during the pendency of his is now clear at least to two out of the three members of the board that is not an aggravated felony but the question remains on any sort of fair minded view of the question of the case as a whole whether or not cancellation of a move was appropriate and the previous decision as to consolation of removal was made without knowledge or at least without taking into consideration the subsequent convictions i don't i don't see that this is unfair your honor i do think it's unfair for a number of reasons but first proceeding then there would be no questions before a problem the question would squarely be before the board and the government had multiple opportunities at which to raise that issue in the first was when it sought remained from its original people or the board on the original cancellation order case is also say that in the alternative because of this new conviction the court should reexamine the original cancellation determination so that would be a standard in any order free proceeding if the government had lost on an issue below and some new issue got injected in the discretion to determine whether or not to consider the issues so the article three analogy actually would weigh against you it seems to me given the broad discretion we have in cases of whether something is waived for example we can still decide that we'll consider that so let me just follow up on your waiver or forfeit your i guess more accurately called when when do you think you can point to where the government actually basically leaves alone this allegation that he's eligible cancellation removal and what do we look to in the record to support your claim that i some action conduct or piece of paper the government actually did such a work i would point your honor to the administrative record pages seventy four to eighty three where the government tells the immigration judge judge filled in on remain from the this remained is it could be just to consider whether such conviction is regulated felony but it also could be to consider all other things that might be implicated by the by the cases that run the gamut agency cases criminal cases there's no reason the government should have to plead in the alternative here but then they don't usually not required necessarily plead in the alternative so i guess what i'm trying to figure out is they certainly could nearly impossible to win against the government you know so when the rules are children there's no doubt in all kinds of context so the argument you make makes sense it's an equitable one but we're faced all the time with situations where honestly because of the way the laws develop the government gets an upper edge you know for example in forfeit your equitable stoppel in other areas so apart from an equitable argument is there or regulations allow them to do those those are the cases that really we constrain what the government's trying to do a year and again that doesn't in another itself support a forfeiture argument but it does mean that if the government does not press the issue which is the equivalent of for there wouldn't be any deficit agency here and of course the government hasn't asked for deference to its interpretation is just said there's really nothing to see here so if the government now stands up and tries to argue some sort of chevron deference issue there might be a problem but that would be an issue for us a talk about merited this discretionary form of relief that's a determination i didn't have to make and so if we're looking at issues of waiver forfeiture but the fact that da jess did not necessarily argue this anything about the discretionary exercise of cancellation removal rolling here for eligibility in that circumstance the i j a in the war are still required to make the discretion a determination that's still something that has to be made for purposes of in order to grant cancellation of removal so once again this is vinyl in your judgment what is there when it isn't final in your judgment can the board come back years later and say you know i think i think really we made a mistake ten years ago let's let's reopen this i think certainly aware in the context of this case where administrative removal proceedings are still pending and where the determination the original discretionary determination by the immigration judge granting  cancellation has not yet been adjudicated by the board where that determination is still in agency proceedings certainly it has not become final now maybe after the board makes final determination saying yes we got a cancellation removal and then ten years later you know new evidence comes in perhaps at that point you know the the board would be precluded from reopening the case but certainly we're here we're administrative removals proceedings are still pending and there's been no final order by the agency the agency is still you know has has the authority to look at that to look like a discretionary germination again well let's assume for the sake of argument that the government aside and not to and the scores recognize many times that the court has the authority to reopen if you saw sponte and i think that's also an important point here in terms of the board's authority and the board that there's a slightly different provision on the one we're dealing with today   counted up and the i j a says cancellation of removal meets all the criteria the h s says no that's not right because look at this evidence i appealed to the b i a on that five year issue so you're saying that at that point for example the b i a could remand and you could take into account all of the other factors on cancellation even if the government had never raised those in a brief i'm saying that the regulations not necessarily constrain the board from doing so so in other words from the government's it's always a jump ball with the government where anything goes once you get up to the b i a because nothing is waived and you don't have to put all your issues on the table is that the upshot of that no i think when we're talking about issues of statutory eligibility and relating to the elements that where there is new evidence relating to the elements of reads the newspaper there's an account of something he says i think we better reopen this case because i read in the newspaper this is i think we're going to direct the that cancellation not be awarded you would say that's sort of i would raise due process concerns what i would statutory elements that are basically required as a foundation to grant discretion and the ultimate power to grant discretion and as i understand what you're saying is that the board always has jurisdiction over this ultimate power i'm exercising discretion i'm saying that the board is not you know obligated to apply a waiver rule in the context of discretionary determination we're always has to make that determination is discretion warranted or is it not and a party may be able to waive some sort of aspect of the discretionary issue but ultimately the decision itself as to whether its actions warrant it has to be again the the issue in terms of of the fundamental fairness of this of this case and whether or not d h s s actions sort of deprive the petitioner of an opportunity to argue that the discretionary calculus the petitioner had an opportunity to present evidence were guarding those new convictions and to you know attempt to argue that they were that they should not be bargained for cancellation  extent is your argument based on the bia is saying when it finally gets to the discretionary determination including the two thousand and seven convictions  because i think that's nonsense meaning i read the riemann order there's not a word about it but i think the question though and if you look at that at this court's decision in fernandes versus holder just cited in our brief and circumstances that are very similar the board questions before it in a manner that is timely impartial consistently acting regulations that language certainly does not require that the only issues that the board can consider are those which have been presented by the parties questions before it can mean questions that were raised by the parties or questions that are simply relevant to the education of the case and the defacto the board has a waiver rule and can say no you gave way this claim as well as the fact that the board will often enter three quick points first the government position just espoused here about what the regulatory language means reads questions before it completely out of the regulation there's absolutely no difference between what the regulation means with that language and without that language