because it would have only come up in the second pre with the rest of your issues i believe the key issue here is whether the domestic a crime of domestic violence means whether the the immigration judge would look outside of the record of criminal proceedings in order to determine what that means and this is the categorical modify categorical protel been used in many times domestic relationship is part of the immigration statute and it still is in the first line of that statue which is consistent with basically every other opinion from the d i m a the ninth circuit supreme court that when you're convicted of a crime of domestic violence which is the first line of the statute you must look to the record of proceedings to find what that person has been convicted of that's what congress said the second part of that started then goes on to define what the domestic relationship would be and that's in acknowledgment that you would not necessarily be convicted of a crime of domestic violence that is like domestic relation crime  differently but they discuss whether your removable for committing a crime of domestic violence whether there is to be an element of the offense and it  place you look to the only you know place to look to how it was committed if you do you would look to the record of criminal proceedings not it would not be an element necessarily a defense for which you're convicted and therefore you would need to look at the issue here really where you would look to find that additional factor any argument is that in all of these statutes when we've looked at these things such as the ten thousand dollars thirty grams of marijuana or more single scheme criminal misconduct there's one elements of the offense themselves but you have to look to the record of proceedings in order to determine you don't have a separate fact finding trial before the immigration judge to determine those then i would like to point out that the argument makes sense from this perspective because one i would argue that the statute clearly says that that first sentence otherwise it wouldn't be there and secondly act against someone who would be a domestic partner though your honor it does not because it does not need to be an element of the threat and that's quite such a complicated issue that you do not need to have and that's why that second part of the statute is there because you're defining who i would argue that having that separate hearing is contrary to congressional attempts to streamline it and it increases mistreated burdens this would promote uniformity and avoids having immigration judges holding family court there would be a lot of good i believe it was not appropriate for the b r d to streamline their story to form of that opinion however i have looked at ventura locals and out of those like cases i think they had the opportunity to look at the legal issue and they decided not to and it would be appropriate for this case court to review it you know be that would be the initial waiver when they requested to remain or went back to the immigration judge or an adjustment they could have waited for the board to determine the issues that they raised as far as that the removal hearing they didn't they decided to go ahead and request an adjustment  concede that the it that the ins did not raised waver in its second in its in the second appeal it did not argue that this was why the government would argue that it was waived even without the waiver on the record because they dropped the appeal however deal that's the government's argument yes john or they could wait for the board to go ahead and decide the issue on appeal and then apply for adjustment of status in this case it's fairly clear that they did not believe they were going to win on those first issues because there are several b i decisions are breached not particularly address the board just asians unfortunately i did not write the brief in this case so i'm kind of stuck with what i've got what are what the government would request  appropriate for streamlining because the for the statute is very clear on its face there is no ambiguity about the first part of the statute as you look at the federal the sixteen u s or eighteen u s c section sixteen any crime of violence the domestic violence crime the second parts requires you to look beyond the statute to look at extrinsic evidence and unfortunately in oregon they did not put in the conviction documents that she was his partner as domestic partner at any time congress's intent is certainly not to let these type of violent scary offenders such as petition are off just because the organ statutes did not include the words domestic violence or domestic partner in addition these crimes were committed in you have to bring in the killer here a transcript or you bring in something else but what you what you can't do according to her is bring in the victim herself to come to testify before the i j a that's her argument yes and i and the immigration judge then reminded her again you've already admitted that he lived with her she then began to say you know then it became an issue maybe he didn't he probably did but he didn't live with her at the time of the commission the immigration that's what is the matter if it was a time and it could be before the crime was committed so there was an invasion and a mission by his own counsel that he did in fact live with her then the immigration judge called the witness the prosecution put on the witness and the immigration judge questioned her at that point  do have to there are two separate things to look at and it's counsel's own admission that he did in fact live with her for two and half years i realized that in their brief they argued that you can't go by counsel's admission however they did you know coun succeeded that it was a crime of violence and they're certainly willing to say that conceded that several times position himself that they're not relying on his testimony reliant they're relying on their own admission that yes he did commit a crime of violence within the federal statu that the government would argue that you can also look at her own admission that he did in fact live with this woman for two and a half years prior to the crime so that is not the only evidence there is also evidence from petitioners counsel on this issue go back and look to be a deal with her before we before we deal with that again what would you think of that but i believe that this court has the right or has jurisdiction to look at this issue now that the v a has had because of that and i do think that this court could have jurisdiction to decide or could remain on the case to ask them to look at it as well because it was not appropriate held a candidate and it didn't qualify for streamlining filed the the ins had originally filed asking whether on the grounds of it being a crime involving moral turpitude within five years of admission we filed a motion to terminate because there had been seven years actually since admission the judge found that but then it said well let me ask you this counsel is this a domestic relationship and the judge also frequently says that counsel must answer all facts that are violence statute could be filed that right there is a good example of why extrinsic evidence is a problem because the judge does not look to the record and he can ask any question you have to appear before the judge