including but not limited to whether their analysis is consistent with the correctly constructed statute which is a question only this court can answer of course the government has taken the unusual step of declining to respond to the merits of the petition and has instead argued only jurisdictional and procedural bars and it's the government's position apparently that this court need not in fact consider any of the case the government's wrong about that for at least three reasons the first one being that this court doesn't fact after action categorically does have both subject matter and personal jurisdiction over this matter and i can second the petitioner is only raising legal challenges at this stage despite the government's contentions to the contrary the petition does not argue any factual issues and we're not asking this court to re facts so we don't want this court to dig into the record contradict the board's findings of fact or even the immigration judges findings of fact so because the government is wrong about these jurisdictional procedural issues  petitioner ask that this court reverse the board's determinations both on the particularly serious crime determination in the convention against torture decision for withholding of removal and then remand for either proper application of the correct standard by the board or with instructions to the board that he is in fact eligible for withholding in this case so as to the jurisdictional argument before we get into the weeds of the law and whether or not this court has jurisdiction the government's argument on this point proceeds on sort of a fundamental flaw and that is that it presumes that none of the issues have been raised below that's not in fact the case the most clear example of this is the convention against torture claim which was raised before the board it was stated that the novo review was required by the board and that an error of law was asserted nevertheless the board failed to apply the nova review and for that reason that issue has been fully preserved prisoner for this court so that's one example of why this court needs to proceed to the merits regardless because it has jurisdiction over that claim this knowing as far as the statutory construction questions are concerned at the very least petitioner did raise the question of the effect of the elements of his underlying conviction on the analysis and that is to say that even under and i am he had to  the board had to evaluate the elements of the crime and determine whether they came don't think it did that it nominally stated that the immigration judge did that the immigration judge also nominally stated that it did it but neither of them in fact you know if you understand the point that you're making there but that doesn't mean that the just because it's you know quote unquote obvious that the immigration judge or the board has said they did i don't know that we need to argue this point to too much but in any event there is there are statements to that effect in those opinions is my well argument before this court is that in you know not according full chevron deference to the incorrect interpretation it's in fact a categorical question and that it should have begun and ended only with a determination argument is first that it the elements issue is exhausted but in the event that it's not exhausted precisely in the way that this this court deems necessary it's nevertheless not a jurisdictional issue this court still has jurisdiction and of course it can approach the question could notice it but we don't ordinarily do that i don't know that it's necessarily the case that you ordinarily do or don't do that but that the law permits you to do it where your error meyerson motion in these kinds of circumstances but i could be wrong i think that these circumstances are unique so i certainly don't suggest that you're wrong about the balance of how often that happens but because of the need circumstances here where the issue of the elements was  raised within the proper scope of before the proper body we believe that the issue should be considered by this court particularly because it's certainly a pure question of law we're not arguing about any of the underlying facts here all we're really just arguing about whether or otherwise this court is the only one that can approach the question of the statutory interpretation and then determine whether or not the board's interpretation is owed that difference under chevron so it's not even possible for the petitioner to have asked the board to rule that it was not owed chevron deference on its own interpretation but you could have argued your position or could have argued that the borg got the law wrong willow in light of recent supreme court cases right so the the petitioner could have argued to the board that the immigration judge got the the standard wrong which in this case based on the immigration judges failure to actually undergo an analysis of the elements the petitioner argued his best case to the board of immigration appeals for how the immigration judge should have undertaken that analysis and then once the board issued its ruling then it was time for for the petitioner to come to this court which is why his remedies have been exhausted properly so i don't know that the petitioner could have precisely argued the  point that we are arguing now to the board about the board's own analysis if that was your question judge obus knowledge as if that's misconstrued that so all that to say that this court certainly has jurisdiction and you know whether or not the exact bounds of the argument before the court in our petition were identical to those raised before the board it's nevertheless within this court province to rule on those questions and in fact this court is the only one that can rule on the on the questions raised i'm speaking specifically to the jurisdiction question just for a moment we think it might actually be very important for this court to rectify some tension in this court's case law about whether or not the issue exhaustion question is a matter of jurisdiction or a matter of claim processing and based on the recent hammer decision from the u s supreme court in late twenty seventeen we would argue that this court is uniquely positioned do that and should take the opportunity to clarify that these issue question the first being that it's barely legal questions and also that asking the board to try to rule that it somehow not owed to chevron deference is circular and impossible and that only this court can answer that question but leslie there's also an exception for futility and i think that based on the fact that i am decision that had been in place for ten plus years and that the ninth circuit in particular has been reaffirming that decision for quite a bit of time and there we think it was appropriate for the petitioner to raise elements arguments in the way that he did before the board and that any suggestion that he needed to argue that we you know go back in time ten years outside of the context of chevron deference would have been futile and was not required in order for this court to prove to the question so for all those reasons we believe the government's jurisdictional arguments  are not availing and that this court has jurisdiction and can and should approach the merits of the argument and educated the government has also raised the criminal jurisdiction bar as procedural bar to this court's consideration of some of the arguments in our opening we would concede of course that the criminal jurisdiction bar as a procedural matter applies to this this case because it's coming up from the board of immigration appeals but as i stated in my opening all of the challenges that we are bringing at this stage the board's determination are legal and not factual in nature so there no factual finding that we are asking you to revisit so the criminal jurisdiction bar is not going to affect your analysis in that respect i one of those legal questions who's one that  charging document that already speak to that place yes absolutely so the immigration judge made a finding of fact that the petitioner was apprehended shortly after attempting to break into an apartment complex and our argument is that that finding of fact has actually no basis on any quote reliable information which is the standard required by and i am because the only point in the entire record that states that is the complaint to the charging document for the underlying possession crime and if you go back through the record we even have other information including law enforcement officers reports and so on and none of them go as far as stating that the petitioner in this case was the person who was observed at a previous time by different people different law enforcement officers trying to open a door and failing so the allegation made in the charging document is not in any sense evidence or reliable information or otherwise and the fact that the immigration judges conclusion was based solely on that document it's the only document in the record that is cited to by the immigration judge and that decision to suppose that i'm sorry go ahead finish it that simple fact means that as a matter of law there was no reliable evidence under an into a legal issue and he attempts to raise new legal issues that he didn't present to the agency these attempts fail starting first with my most attempts to raise issues he didn't raise below these attempts simply are not permissible ramb really contest that he failed to exhaust his attacks on the board's precedents on the particularly serious crime bar and indeed his brief to the board specifically cited that a case that he doubt attacks and  in his statement counsel mentions the fact that he did raise this argument that the i j a didn't consider the elements of the offense at all he didn't raise this argument however in his opening brief and so someone has been convicted of a crime of violence under state law the i j a and the board both stated the elements and they both determines that those elements were potentially a particularly serious crime now this court because of the  jurisdictional bar lacks jurisdiction to determine in the first instance whether the elements are potentially a particularly serious crime the reason for that is that that is a discretionary determination not a legal determination now ramble also argues that he exhausted his arguments that the board should have applied did over review to his convention against torture claim but in fact he repeatedly invoked the clear air standard to review regarding that claim surely a general statement that the you know review applies to issues of law isn't enough to preserve the arguments that to nova review applies to any issue that he now wants to bring rambow failed to exhaust the arguments most of the arguments that he raises in the brief to this court this court should take the opportunity to hold that failure to exhaust the issue is a jurisdictional defect the court has held as much several times should find that the administrators exhausted doctrine applies and it should not find that an exception to the doctrine applies if the court decides that issue exhaustion is not a jurisdictional requirement or declines to reach that issue now it would be futile from imo to raise in his on exhausted argument so the board the board could reconsider its prior holdings on the particularly serious crime bar or at least provide further explanation for those holdings or perhaps modify the holdings in some way suggest that it would be futile to argue that do you know of a review applied to his cat claim right but also suggests that what he really wants is a judicial interpretation of this particularly serious crime are not in agency interpretation but the administrative exhausted doctrine and the jurisdictional exhaustion requirement in the statute are both designed to prevent this kind of leapfrogging over the in ministry of agency if the court does want to reach these on exhaust issues without a remand to the board for it to consider the issues in the first instance respondent strongly urge is that the court allows a supplemental briefing on these issues but notably every that has considered the issue has deferred to the board's interpretation of the particularly serious crime are in and i am no court has ever applied the categorical pro choice the particularly serious crime determination were required the board to perform independent out now states of the interest of the only court finds that a particularly serious crime must be an aggravated felony if the third circuit but the third circuit didn't have the benefit of an am in making that decision indeed the third circuit recently sue a sponsor granted on banc review of the case that decided that a p s c must be an aggravated felony now i move on to the exhausted issues i already dealt briefly with rambo's arguments about the elements judge arnold your question about looking to facts and circumstances beyond  reliable the burden the i j a both pointed to the facts and circumstances surrounding the arrest which were laid out in the criminal complaint itself and clearly those facts are related to the conviction although the agency only cited the criminal complaints there's no indication that ignored the police reports which are in fact entirely consistent with the complaint the complaint stated that the individual was later identified as brando there's nothing in the police reports to indicates that the individual who was playing on the door was not rambo and in fact one of the police reports notes that the person who was pulling on the door matched the appearance crime it was considering whether this particular this particular crime of possessing a firearm when he was prohibited from doing so was a particularly serious crime given the facts and circumstances the argument on account claim is on your side that's a factual argument or an argument for legal character i believe that he's mostly raising a factual involving these criminal it really and to have our removable for committing certain criminal offenses so i would suggest that it's the burden is on the petitioner to show that the issue was within the c twelve thirty one b three a is the statute that includes the language about a particularly serious crime and i refer you to pages twenty eight to thirty of our opening brief that sets forth our legal argument in particular in which case and garcia marquez room of the court held that the petitioner would have lost under either standard and so it was an academic exercise to approach the question that's not the case here and so this  question next to the government argued that the law enforcement officers reports were consistent with the complaint that's not the same thing as saying that the reports have facts in them to the effect that the petitioner was seen trying to open the door factual statements in our opening brief about the cackling that's not to say that we want you to reweigh those it's to demonstrate why there is significant prejudice to the petitioner because proper to novo review would lead to a different outcome so that is a legal counsel thank you for your arguments cases submitted and you may stand aside