critical factual error and my client second to last hearing the i j a confirmed on the record that his fingerprints were up to date and would still be good at his next hearing but at the final hearing after the government disclosed that mr go i think we do have jurisdiction in this case because the p i a s order stated twice the grounds for the decision and the b i recognize and stated that failure to timely comply with the biometric requirements belief for denial for it belief to be i also found that mr gomes did not demonstrate that the i j a erred in tonight his applications for relief and this is sufficient for exhaustion under ninth circuit case law and in this case it was a factual error in our stevie holder for example the ninth circuit has stated that it may deem an alien to have exhausted the claim if the i g is decision is facially premised on an incorrect factual finding but the b i i nonetheless only relevant issue to present on appeal here and i just want to also move to the issue that the i'd use discretion to grant a continuance in these cases is limited this court has found time time again that even if the i j a has given explicit instructions to a petitioner to renew their fingerprints if the petitioner fails to do that the it could be an abuse of discretion to grant a continuance in those cases and here we have a factual pattern which so much work reaches we have a pattern where the i j a explicitly told the petitioner that his fingerprints would still be valid by the barents hearing but suddenly reverse the representative of the of the department of homeland security and the judge misrepresented the facts they were exactly the opposite of what they said and on that basis it is with this case is not  correct that is correct well don't you think that deplorable it's unfortunate what happened but i guess sure that it was just that misreading of the record there were ten hearings the immigration judge takes notes on each hearing and i'm sure  asli based on their false representation and you know still here saying he shouldn't get a hearing that is cracked and i don't think you might like to think that over again if you were sent to mediation i just i don't know how that would help in this case because the bill he can have a hearing i mean that could be a possibility if the court was inclined that we would entertain that idea but i just don't know how it would help because the point of the exhaustion requirement is i don't know what the board could discernible you need to read through the entire transcript to find that the last hearing the very last year the august was in august and then you read the current hearing it's obvious that there was a mistake it is but i just don't think the board has to be tasked with that it's not their responsibility why shouldn't i just interpret what the board said here is sufficient to for under the circumstances as counsel just argue that there was that the board's decision is premised on an incorrect fact this blatant in the record and then into those circumstances we should just construe with the board did here is sufficient to meet for exhaustion purposes send it back and say do this over if the court were to find that she was exhausted i would agree that remained would be the appropriate remedy time and the board could address the error in the first instance which is the point of the exhaustion requirement that they address errors and fix them on appeal but the petitioner didn't raise it and i just think it's an onerous task to expect the board and you know why couldn't we why couldn't we just construe that i mean the that would permit us to if you will waive the exhaustion requirement when it's premised upon a false statement that all of us said it basically i mean you look at what happened the the petitioner here was misinformed to see it doesn't sit well at all of the government is now saying well you know the result is based on deceit  got to go forward with it could it be inconvenient for us is there any case law that would permit us aside from considering it in the way that judge pius suggested that would permit us when it's when a decision by the b i a is based on a false premise to treat it as if it is exhausted i am not aware of any case law that that as an exception to the exhaustion are firemen and i don't know that the board was aware of this factual mistake in the record respect we have to read the record all time has to read the record that's what it's reviewing and it cites to the record of what happened in the eye jay's decision when it makes decisions itself i'm just i'm just troubled by the concept that they somehow didn't know it seemed to me they knew perfectly well what the issue was and what you have it's a something it's simply a timeliness it's not like something in a grocery store where it's expired and you shouldn't use it after that point it's a biometric measurement they want to be sure that it's up to date but the practical matter is it's not really old it's really nothing that's missing other than the fact that the data has expired and and the petitioner was told that it was ok and then turned out not to be ok is there a judicial stoppel concept that could apply here i mean not that i'm aware of i mean exhaustion for administrative remedies as a stat statutory point i mean that is something that i could raise with the board and see if they would be willing to join perhaps in a motion to reopen but at that point that at this juncture that has not been well we could probably have a discussion about that in mediation and i would hope somebody from the government would have some decency if they went through that i don't know where you get to the level where somebody and i don't mean  i know you don't have the authority to do it and it's not your decision but i think if we had a drink and i asked you what you thought of the government behavior you'd have a hard time saying anything other than that disgraceful perhaps even without a drink but i just assume nothing in defense of the agency i don't i mean yes there was error but i don't think it was malicious or intentional or anything of that behaves you know he may not like a federal government there are people who don't but few people would accuse him of doing this taking advantage of somebody and deporting him without a hearing because of anything in that case about the board having considered it it was just a statement that said the ninth circuit may deem the alien to have exhausted the claim if the i just decision was facially premised on an incorrect factual finding but nonetheless adopted the decision so i think that gives you enough room here to to have jurisdiction over this case and i just want to respond to the government's position that you would have to comb through the record here to find the mistake i don't think that's true i think it was on the last couple of pages of the second to last hearing and then the final hearing in the ideas decision goes on and on about how with the with the government's orders and with her orders to update his fingerprints so i think it was a fairly obvious mistake here and the petitioner should be allowed to just have a brief continuance update his fingerprints and  proceed on the merits and just one more point that i want to make was that mr graham has pursued procedure pro se before the b i a so he didn't have any legal counsel to help him putting together his notice of appeal or his brief and as we know the claims ra the be a pro se or construed liberally on appeal and a failure to raise an argument isn't fatal to obtaining this court's to review because exhaustion requirement is met if the b i ignore is a procedural de fact and alexa considered the issue a way  and finally you know as a government stated it agrees that remained is appropriate if it's option is met this case and all we're asking for is a free man so that my client can renew his fingerprints and have an opportunity to present his it wasn't the central holding of the case but that case did made that point