deciding any of the questions that have been pending before it for more than two years will remain and is the least the court can do given the government's acknowledgment e i a did not adequately consider the issues presented in the transparent ploy to revive issues that the government forfeited i failing to raise and before that the ira persons government already made that request a motion this court already rejected it and it should do the same here the issues presented to you says quick question but this remained issue because it is a little perplexed saying in the sense of it's interesting but as i understand it what you're saying in your client interest is that there should not be a remained instead the court should conduct detailed legal analysis of whether or not the b r d correctly decided that your client's robbery conviction amounts to been to witness st a defendant can be convicted of robbery unlike faffed for taking property that he believes honestly that he has a right to take  that is clear from the may here decision by the new jersey supreme court and it is also clear that if this were purely a theft conviction that that would not be a basis for convicting someone of theft either under new jersey decision by this court that the government acknowledges did not happen the actual analysis sorry even if we agree with you on it why wasn't it a crime of violence in jersey statute section to see fifteen dash one a day has three subsections that are all elements right why don't we just apply the de novo legal review to that and say that applying the modified categorical approach we know that we drill down to the shepherd document so we know that you're quite used to hammer so it's reasons not so for are supported by the record even when the prevailing pouri didn't join and interest that issue i would add on top of that that the briefs do not address the issue at all petitioners bob and i had an opportunity to develop an argument but by me it isn't the point at one level we're limited by generic principles at one level we're stuck with what ever had to be i e we can't inject judicial reasoning for in the agency decision beyond that's maybe separation of powers problems but what we've got is we have one sentence from the b i e that i can find and maybe counsel knows of more it basically says that case robbery conviction an aggravated felony felony theft offense so that's a conclusion obviously we are bound by every piece of reasoning in support of that but doesn't that satisfy canary to take us up to the point th were evaluating the legal correctness of that and that we can now once we've satisfied canary a farm on any ground that supported before us waiver aside i think that that is would be sufficient to allow the court to resolve the question of whether we determined that the offense was an aggravated felony theft but i don't think it reaches the question of whether it is an aggravated felony crime of violence given the petition was not convicted so we don't actually know from the record of conviction which of the problems of aggravated of new jersey robbery was the faces for his conviction in addition  the this court does not have a decision conclusively construing the other prongs of the new jersey robbery conviction to determine whether any of those would be aggravated felony crimes about so so the problem though is this if the b s analysis on this on this score is incomplete and only goes half way there isn't isn't the will remain i mean that's that's that's pretty blackwater right particular instance because of the fact that the government at no point in any proceeding not before the i j a in the st instance not before the b i a on the st and nd trip to the beach at no point has it ever suggested that this conviction is a crime of violence and it might be different if the government it's had actually made an argument before the court that this is a crime of violence and that there was an served so i get that if could be a on its own maybe didn't go halfway there and so once to be our egos halfway there it looks like they're they're running this argument on on a categorical or modified categorical we don't know i don't think but they're going down that road once they go down the road if we say ok you went down the road before all the way isn't the answer for us to either say it's a pure legal question that we can finish out or be a you have a choice either back up and don't go anywhere down the road or go all it went down that to get to crime of violence right no it went to done that to get to particular serious crime if you analyse this is that if the crime is an aggravated felony theft it qualifies automatically for purposes of asylum is a particularly serious crime and if it only has a greater than five year sentence it qualifies as a particular serious crime for purposes of withholding removal there is no so no point in that analysis  assist in resolving this case if there is a range even if this court mans i think the minimum that we would want this court to do would be to resolve the defense issue to resolve the change of country conditions issue and to ensure that there is some sort of state remains in place this court has authority to retain jurisdiction and maintain the stay so that my client is not actually removed before the remember this court orders actually happens even has removed any prevails and later can come back up that's not actually a an open question we've not made but we've done some research on this and i've been able to determine the court has sad that his motion to reopen asylum he would be able to that's a good as a crime for entering the country but withholding of removals would be from google and as far as we can tell we've not been able to identify any decision that would give my clients officials assurance that if he were able to obtain withholding from reason your client opposes remained would that a swash your clients objections to remain that would go a long way to alleviate my client's concerns we would still want the court to resolve the issues that have been grief with the benefit of  offense and i'm sorry i don't recall from your brief but do you do you concede that the agency erred by failing to apply the categorical approach no we did not and right ok but assume for a minute that the b o h should've applied the categorical ringback approach and it didn't you want us to send it back without telling to be that it made a mistake that would not be a tremendous waste of  something comes go back and then there's that have to remain that where we conduct a detailed analysis and say these reasons that you provided don't measure up legally and they're wrong so so it one level this focus on remedy it matters why why least i'm surprised that you didn't offer something a little more extraordinary to say we think there should be remain and will consent to this court retaining jurisdiction he gets the benefit of his stay you get the benefit of what you wanted to happen front of the b i a what's your and therefore his remove ability is not an issue this is all in the context of a discretionary motion to reopen to seek relief so there's no question that he is not supposed to be here the question is whether he can apply for relief and protection in order because it's a crime of violence then he's not entitled as a matter of law to asylum or withholding he's only entitle to pursue catley right that's correct so wouldn't wouldn't be overburdened agency well the opportunity to hear a cat could case rather than having to do in asylum withholding in cack case i mean i just i don't understand your argument that this court should not rule on legal issues we would prefer to me i mean just to i think i've heard that argument yet you've started to say but i haven't heard you say why we shouldn't do the modified chemical or go approach ourselves because the case has to go back either trial judges are really happy with courts of appeals take a case that might be really big and send it back really small projects or through when that happen don't opine and then give the agency a chance under my hypothetical assumption to her on the law about a categor with respect to aggravated felony for robbery conviction took her on the modified county we're going to send it right back to this court and then another three judge panel can do all the work that we've just done studying those legal issues and then opine on the law is that what you're asking things to go like that and remember the board doesn't even need to address his criminal convictions to change the changed country conditions peace answers everything that he wants he wants reopening for asylum withholding and kat if you can't show a material change in nigeria that would warrant reopening you can't get reopening for any of those things right ok but what if what if he does should change country conditions and all these other legal issues that i challenge you about are back on the table or they are in a way but there  withholding of removal so it's entirely possible that on remand the board doesn't touch the eggshell question they don't need it doesn't answer anything if they can find it's convictions either for robbery with a ten year conviction position with intent to distribute within a one thousand feet of a school any of these things could be particularly serious crimes in the agency's discretionary weighing of factors that are looked at and they don't have to answer the aggravated felony question so what not but is it isn't that something really just truly a discretionary call that this that this court makes because it sounds like there is there is there are there's different ways this case could break it could it could result in change country conditions if the result of some change country conditions then yeah maybe remit is the cleanest way because all these other issues aren't necessary the flipside is that it's already made its way to us and it's made its way to us on something other than just change country conditions it's made its way to us but the best defense issue in the category approach in the non cash and the modified categor approach so in a light of the fact that it comes to us as something other then just a change country conditions case isn't the best exercise of our discretion to say look we're going to answer what we can before us if there is an open question so that we can't answer as a matter of law then will he end up back not the quick turnaround remained with the hope that the change country conditions solves it only to learn maybe it does not were brought up with another panel that's certainly an option i don't mean the government does not mean to imply that the court could not get to the ag felt that defense question our point simply is it doesn't answer even whether he's prima facia eligible for asylum in withholdings and since it doesn't answer any of the questions the fastest way for k to get the answer that he seeks on his motion to reopen is to send it back if he has to wait longer for a decision by this court that's just more time that he's waiting for the answer these but he's willing to wait just trace back and make sure i'm hearing what you're saying which are saying is there for there's there's two classes of bishops one of which is this is this robbery is a crime of violence defense robbery crime of violence and the other change country conditions were telling us is that if we remained unchanged country conditions that could solve everything and then what you're telling us at the same time is now he doesn't allow us to fully consider that robbery  but not the eggshell crime of violence because that's a separate an honors the government just acknowledged that this court is capable of resolving the aggravated felony theft offense issue without the need for an remand it's certainly it's sort of extraordinary that the government has asked the court not to decide the issue when it has not even taken a position on it in this court so we think at a minimum this court of resolve this issue as to the or as to the remaining issues crime of violence the government acknowledges that the core can't resolve it but we do think that the court could say that there was a forfeit the court or the court does have it has in some contacts addressed excuse to forfeiture the government has not even made an argument in this case as to why it's forfeiture should be excused and i would point this court to the johnson crimes in the absence of a aggravated felony of the government has not taken a position and it isn't has never articulated a basis on which the crime could be found to be a particularly serious crime independent of being  aggravated felony that is an issue that would require some active element we think it's forfeited but if the court doesn't think it's forfeited we think it requires some development so it have to go back to the b i a for that kind of fact development because the framework for determining a particular fault them for if and just to argue that for for the one we only decided their case after the briefing was the only thing well i would disagree a bit with that because even under the previous regime it was clear that for purposes of asylum you could particular serious crime without an aggravated felony the start of a decision is exclusively about withholding approval so if they were to develop the argument they had every reason to develop it before finally i would emphasize that this court does have authority to retain you want the legal issues decided there you want to remain in you want to stay while our ideals and you want us to throw the forfeiture flagon on some things right and if the court were to find forfeiture that would be enough to remand with instructions to