kuna and therefore petition i respectfully request that this court refer petitioners case to the full panel for on back review this case comes before the court on petition for review of the board of immigration is decision to deny the titian or  who could have been excluded at the border would be eligible for the two twelve c waiver of b they does not control petitioners case though because in his briefs consistently in his opening brief this reply brief and supplemental letter brief recently filed with th e if he left the country some time after having pled guilty to committing sexual abuse of all mine it's well started in all jurisdictions including the ninth circuit and the b i that got in the government has not disputed this point either that sexual abuse of a minor abuse of a minor therefore there is no speculation or factual inquiry necessary to determine whether the ins would have excluded petitioner this fact distinguishes petitioners case from the court's analysis in a b bay which was following the reasoning and common ranko and both of those cases the court addressed whether an alien who could have been excluded at the border was eligible for the two twelve c waiver income ranko the court addressed whether an alien who was deportable for having committed a firearms that that remains good law specifically legal protection requires that because petitioner necessarily would have been eligible for to twelve c relieved if you had left the country after pleading guilty to sexual abuse of a minor you must now be afforded the same opportunit of the court is required to withhold judgment in this case and refer to refer it to on bank review and that is because the demand the opposite result in topic when the court adopted the reasoning francis from the second circuit where a petitioner in this in the place of this petitioner would be eligible for twelve c relief had he only left the country as only for a few hours at any time after his fall and his conviction the government can't deny that in this case petitioner would be would be treated as if he had as if you were being excluded as opposed to deported if only he had left the country because that is not the case instead there their position the government's position itself says we're going to take that question on and we don't find that there is an equal protection or a due process violation and so i don't believe that is irreconcilable they're dealing with one on one deals with a case that has a couple grounding  judicial branch does not want to infringe on the longstanding and well recognized right of congress and the executive branch to control immigration matters in the case  where in sexual abuse of a minor in this case the judiciary would not have that same concern because it is not entering into a factual review of whether the petitioner is crime actually constitutes a crime and in that sense tapia cannot because it adopted the reason why francis would also control in this matter on the second point is that although the government disagrees with the opinion arrived in in the blake case in the second circuit it's notable that the concurrence in the beating issued by this court echoes the reasoning for and in the blake case in the second circuit and agrees with the fact that the should be making the determination of whether someone is would be excludable had they left the country and it's not difficult for the v a to do that either because they're there they're prepared to do so thank you thank you can