say let me just interject that i also would like to hear the answer to that because i'm also originally from missouri growing up in a suburb he's a card over here from st louis he's the same guy totally different games and a vaca tour of a conviction that occurred more than fifteen years before the conviction was resolved and also the person i mean the petitioner aggravated felonies she committed a crime she was convicted she also left on her own and she didn't appeal right and this is just quite a few years after that now she wants to go back and well i think it was spontaneous discretion exercised if you look at manilla versus lunch it does discuss whether or not the b i a reopens the case then her removal will be as if it never happened  ms one as case she's a person who was convicted before days they can't came out before rendering versus lent and before lopez versus  lopez valencia versus bar so there were three but if anyone wait long enough they can find something that would be more favorable for him but for them and so i don't think the nia is meant to be a freeway it's meant to be an alley and so well if you want to make it a freeway i don't want to make it a freeway i do recognize the special conditions under  the case back to the b i a to discuss whether or not the removal i mean the reopening would then make that person eligible for consideration under cancellation of dollars a for permanent resident similarly and miss one is case she's a person who was an l p r she was in t eight in two thousand and twelve she was removed in two thousand and thirteen and she did initially file for removal i mean file for appeal to the b a a but withdrew it because there was no no hope at that point that she  could you know find any relief the camp was not decided until a month and a half later and then that may have solved the problem for four hundred and fifty nine but it didn't solve the problem for a need at all three of those cases to get some relief and it's her argument that this is a fundamental change in the law because lopez valencia did not apply the years and six months at best you're talking eight months right at best actually seven months i counted so i can have to show that she present an exceptional correct but if you look at for instance if you look at the supreme court decision in mathis versus the united states justice kagan addresses one of the key issues i think it which is has a claim on the law this is a very thorny area of the law there's a lot of confusion around it and you know it's taken and it took this court almost three years to figure out you know how how to apply the modified categorical approach to both randon versus lynch and lopez versus bar i'm sorry that does not help your client well i think it helps hopes my client in the sense that in the decision mendez was they specifically pointed out that there was a fifteen years after the execution of the lawful deportation order and miss lowness case it was we're only talking to less than two years difference  would have additional questions you still you have the additional time for rebuttal ok thank you like that after you we hear from the government thank you case and is in fact controlling of this case both cases involve an order of the immigration judge that was not appealed by the petitioners both cases involve untimely motions to reopen or reconsider and most significantly both cases involve boards to the board's discretionary determination not to sue a spontaneous reopen reopen to reconsider the case so are you saying we don't all right but we still have to look at yes your honor but even under boney talks about how generally this court does not have jurisdiction to address discretionary determinations by the board and then bonior they carved out like you said an alley they said there is a limited exception a narrow exception and that is when the board's decision relies on their own yes constitutional or legal premise in their we have here your honor that is not what we have here similar them and then incremental or fundamental the arguments of petitioner is presenting there really are red herrings to the real issue that is before us and that's the discretionary determination by the board the board didn't base its decision on the change in law the board base its decision on its discretionary authority and it said because the petitioner did not appeal her did not appeal the decision of the immigration judge to the board that's what the board said and that is why it found the petitioner doesn't warrant that so if we're talking about  where you would look to whether what they're doing and you know what they're doing if there's let's say if everyone else like her if she could show that everyone else like her got release relief well this sort of practice thing what would concern me about that let's just say you know that as when something is just crushing mary as a judge all judges don't decide cases the same all right when we have to scratch and so it's someone else could have exercised there another someone else could have exercise that discretion differently and that way and if the government had appealed then you might lose you know you might lose either way if it's a matter of discretion if you can't review discretion but i'm thinking like you know i think just like advocates sometimes when they find out who the panelists they go yeah yeah judge callahan judge callahan you know as far as and judges may come to different conclusions when it's an exercise of discretion so it doesn't seem that settled a settled practice would be just because two judges would do it differently right i mean that doesn't seem like that would be a good way for us to then be able to review discretion absolutely your honor and even and then does gonzalez this court has a paragraph saying we're not just going to assume that there's a subtle practice because we have a couple cases the court the board really has to demonstrate that they've adopted a new rule so if in every decision we see the board is doing it a certain way and maybe even explicitly saying that they're doing things a certain way department of justice came out with a guideline that had all the people that fall in this particular time period and could benefit from day camp and i think what was the other case there was another case that they are now on the screws i guess if all the people in this period that could benefit from that it's our position that they should it should be reopened that's exactly right your honor and we don't have anything even close to resembling that in this case so just so that we understand your analysis i think much like judge gold had previously if you were right if you were writing a disposition for the court how would you how would you write at regarding the need and  is controlling in this case in both cases the board exercised its discretionary authority it's a spontaneous already in denying the motions to reopen or reconsider and given that this court does not have jurisdiction to review the board's decision and i would deny the petition for a view on that basis but it seems unusual that you wouldn't even because the nia is what allow was the st and rode to it so you wouldn't even what you i mean would you said that menendez can solaces an interpretation of what exceptional circumstances means and it has to be a subtle practice i don't i don't quite i don't know how we can i don't get me i don't know how we can ignore the here well he was talking about a situation where the board's reasoning relies on a constitutional or legally erroneous premise so in that as gonzalez the court said that the board's decision don't rely on that in this case the board's decision al does not rely on that ok so they want to have additional questions that the government the stream where you go to the missouri connections unfortunately and it's ok that's not a factor in deciding cases right so you said you wanted three minutes for a battle you actually have six minutes and fifty seconds if you want to take it all and you'll say right when you may please the there was no the underlying board decision and that there was no statement as to why the board even denied the previous motion to reopen well but there isn't any that the problem is here there's no showing here that there's that there's any settled way that they're handling these type of things so how do you get how do we get there on this because part of when you were when you anytime were going to receive view discretion mean you start with the premise we don't get to review a discretionary decision of the board except that yes and that says it's got to be exceptional circumstances and it's got to be constitutional or legal product ok so if it's not constitution of the fundamental change in law that was created in lopez valencia lopez of the lengths here was relatively minor an incremental as opposed to the type of clear and profound and truly exceptional change in the so even though that's not may not be entirely dispositive what like the government says but it seems like that's uphill battle for exceptional an exceptional situation under circumstances under but no because that would be like you previously stated the entrance of a freeway the narrow exception is here because it wasn't even considered  the people fifteen years ago would be the same thing they wouldn't have they wouldn't have had the benefit it wouldn't have been considered so why is it it's just fifteen years as opposed to two years or as opposed to eight months why is why is that what is different the difference here is that it was only two years and seven months and that is the reason why mendez in this situation is ides two years and seven months and one day that's not exceptional where do we draw the line you know that's it part of the reason we can't sue a spontaneous we can't refute something to a spontaneous there's no there's no there's no standards for it and so i'm i'm still not hearing what you're bright line as here right and the bright line here as to the exceptional circumstances is because there is prior prior and unpublished decisions before the board that do state that a fundamental change in law is cause for reopening of a case we don't have additional questions but you have the time and if you want to use it yes thank you so as previously stated there are exceptional circumstances in the situation because respondent could not have even filed a motion to reopen reconsider and fill the decision and open the lines and as such scuse me reopening is is necessary in her case without having to