good morning arar's ma'am please the court i like to reserve two minutes for rebuttal motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by  other evidentiary material i think as we proceed we need to focus on that regulation and continuously comes up as we weave our way through the arguments edition in this case submitted a motion to reopen he had gotten married after his case after there was a final order of removal he had married life of his three children that he had been with and he thereafter submitted a timely inspection with which would make him inadmissible however we also submitted evidence that he was to forty five dollars i grandfathered as we referred to in a practice that his mother had filed prior i'll move on from that issue so the other issue that the board tonight on was was basically discretion but also i think that an underlying legal air which is holding the wrist the petition or the immigration respondent to a burden to explain or even address an arrest that is untethered to a criminal conviction and the respondent in this all went to the th amendment there's a presumption of innocence here and if you've been arrested a one hundred times and never that's never been tied to a conviction then how can we hold the petitioner in this case the immigration scintilla of rough relevance maybe a peppercorn of relevance but i do not think that it can be what the respondent is arguing is that we didn't submit facts for the regulation of facts that are supported by affidavit affidavits or other evidentiary material and then i didn't properly address that criminal record before haven't really is a lot of information about the  e that is correct there is and it's and i just keep pointing to the fact that it's it's arrests only and so any time we have arrests which are un tethered to criminal conviction it puts  petitioner and a very precarious position should they write a declaration explaining what happened in those arrests and then open themselves up to waive their th amendment privilege against self incrimination or should they simply state like we did in his in this response petition motion to reopen it he has no in inadmissible criminal convictions and that those arrests have not resulted in any convictions i think that's the i think that's the best but what is your home run case for the proposition that arrests untethered two convictions actually i can see you again but he did submit something stating that none of these resulted in in convictions yes in my motion to reopen eyes i made basically two statements regarding the criminal record one and none of them have resulted in the other is that be wrong and now imagine you would you do now admit that it is wrong and so that we're down to just the one ground and the case on appeal turns on that is that correct the case on appeal turned on this issue because the board likely exercise of discretion or not the same thing and well they and you are reducing commission the there are two levels of discretion as your honor mentioned earlier there's the discretionary determination whether to grant adjustment of if i may your honor discretionary denial is based on his arrest history the discretionary decision can be based on anything in the record he does admit to having convictions both in his testimony and in the record of the court excuse me that sounds like what happened in that case is that the threshold question of eligibility for the underlying substantive relief was not relevant because even if that substantive relief were before the be granted i think there is can you just say well you have a prime aphasia case for the adjustment of status we're not going to reopen because we don't feel like it i mean it's sad but it's that the position it's not tied to a discretionary determination on the room underlying relief itself that's not how i read the b i a order it's it's we're not going to be open because you didn't make enough of the showing on the criminal record guy is is absolutely allowed to deny him oceans reopened based on a criminal record despite the underlying application or relief which is also discretionary in this case the board made it very clear that their criminal history was laid out i just want to understand so if they if say it was some form of mandatory  relief and they had made a prime official showing for mandatory relief but it arises on a motion to reopen because the circumstances changed and the new circumstance for mandatory relief is now available and they assert the motion reopen and the board can say well you have a lot of arrests we don't like you so know that even though there's no discretion on the underlying relief is that your position mandatory because different because the courts clearly even the the motion to reopen standard has a heavy burden and here mr solace has not met his heavy burden because he is claiming he is inadmissible but he has the burden to show that and he has not he has a history of dictated if you look at that i q thirteen if you look at his own testimony if you look at the f b i rajiv that alone is sufficient mr solace and his counsel did not present any any case law saying that arrests are insufficient for the warrant denial changes the board says of the respondents failure to fully address is criminal record or not we will also deny the motion as a matter of this rush in terms of what actually happens here right the the inadmissibility without backing it up the day just fine opposition providing actual documentation of his possible inadmissibility he did not rebut that he did not present any information otherwise so based on not only the board had no other information  has already testified to having been convicted of a controlled substance arrest he has but in his own record on page and i will give you the exact pa you can see that that conviction that we've discussed previously is the only conviction he has and that none of the others on the rap sheet resulted in a conviction i cannot speak to that because the f b i record only discusses arrests there would need to be additional information that us d i s would have to garner from him through a request for evidence if he were to apply for adjustment u s i asked would need to have seen additional evidence and so they issue requests for evidence from missionaries in order to get the most updated and the most dispositive information about an arrest history and then he can be determined whether he's eligible for adjustment or not so invest moment all i have is his arrest record as well as conviction for firing a weapon and resisting officer page ninety three i can give you any more information than that but the point is the board doesn't have to have more information the board has relied just on the teen arrest which is shown on the rap sheet which no dispositions so your whole presumption was that the rap sheet would show the conviction if it were their book we seem to know that that's not true  hold on you're saying that the rap sheet is prime if a she habitants that there's no relevant convictions but we have reason to question the rap sheet because it shows it rest for the very saying which includes  pieces of evidence for the record we have the f b i rap sheet you have the i two hundred and thirteen and we have this testimony that the respondent has brought up i'm saying that the only reliable information here is the f b i rap exactly it is based on the f b i rap sheet that's where they get that information and also i'll just point out what what more does that i have still haven't heard to this day what more the board wanted or what respondent is arguing we could have submitted and also just point out that i don't want the issue to be confused here that the board is allowed to deny based on a criminal record wars but that has to do with convictions and i'll i i believe you need a conviction and if there is going to be some type of admission made and i think that would be it should not be something that should be decided in a motion to reopen it should be something that should be decided here and again the f b i rap sheet is that it is the document to be that we need to focus on for the criminal record and that does not show any convictions and where we've been