think it's important the two sentences that he did devote to them st he said i recognize that it will be emotionally difficult for the additional children and then he concludes but that doesn't meet the  standard of evidence the nd sentence was that i received letters from his two children one qualifying one not qualifying he said ronan and christian he did not receive letters from or in christian  son also his biological son and a one hundred he has another biological son jeremy who lives apart with him from him the court did not devote any any thought or consideration or any effort any time in its decision to the emotional impact it would have on his qualifying children your honor as a subsidiary argument to that your honor i made the argument that he did not the the immigration judge did not allow the children to testify and i think one of the city not allowing any this favorite and he was not asked he said twice that he he does not did we well i was in the attorney below but two letters two letters were submitted your honor one of them from ronin his non qualifying son and one of them from his shoes and your honor i would my response to that is that letters letters would you know counsel counsel did say judge we want to have you hear the children too you know i hear their point of view that they're going to they're going to be missing their father his two step children the the argument of not allowing the children to testify is a subsidiary argument to not considering the emotional hardship to the children so one of the factors that under two  he must consider is the hardship the emotional hardship the subsidiary argument to emotional hardship is not allowing the children to testify in the emotional hardship without their testimony correct and i guess you did you  after jackson after she didn't use the word objection but she said judge she she explained she expressed to the judge that she wanted the children to testify so she no she didn't use the word objection and it was not made to be ira so testify i just want to read one sentence from a case and i thought it was significant it was cited in my colleague's brief this is from and i practice the pronunciation of this kirana glue versus lynch it's in the federal considering specific subsidiary legal arguments were arguments by extension that were not made below and this is precisely what i'm arguing that is a summary order yes your honor and it cites to and further judge it the failure to the the prevention of the children from testifying is a subsidiary argument to considering the emotional hardship on the children and even though it was not raised before the b i it can be considered here because it is part and parcel of that argument seuss it says if you will permit me to read it it's very brief it says this letter is for my dad my dad is a person who is very responsible he always spends time with me and my little brother christian i don't know what know i think there is an exceptional hardship your judge and if we take if we take the seminal case matter of montral and the court said that that was the that was the ordinary case mr montral we have removed to  mexico his family went with him his wife and his two children went with him they all spoke read and wrote in spanish and they would know have been no separation there wasn't a question of a financial hardship they were all living together that was the ordinary look at the facts of this case they are substantially different we have his wife is suffering from a life threatening illness that she needs medical constant minute memorize a medical attention she has a very severe form of cancer presently president presently no presently no he has two sons both both with with asthma so there is there is she makes and she makes three hundred and thirty dollars a week at her job  deal her name is dolores they live with a one hundred kelvin and ronan he has two other sons christian and he sues that live with his ex wife and then he has another son jeremy who lives with his ex girlfriend machine at home and that's cool his father helps him with his medicine he helps out with medical expenses they have health insurance but it's not that good it doesn't cover all of the medical expenses and  is the ordinary case everybody's going back together no financial hardships everybody speaks spanish they're going back to mexico his children don't speak read and write spanish they would be effectively separated from their father for ever he can't support them if he moves if he goes back to el salvador it was it was proven that he would make something like six dollars a day you know so his six children that he supports and when and we have evidence that he supported them he pays child support to the kids that don't live with them he supports even his step sons he adopted two kids he supports them he financially supports them he emotionally supports them you know he would be completely and forever separated from them thank you discussion about them going back and that doesn't go to necessarily too hard on the parents doesn't it the emotional hardship on the parents well the most you know hardship there was focused before the agency was mostly on the children there was the end of not the last merits hearing but the nd to last merits hearing there was a discussion about whether the children should testify and the attorney said you know i'd like to put the children on the stand the immigration judge says his preference is despair especially young children and burden of testifying but if it was necessary he would allow the oldest child to testify then at the last hearing at the conclusion of witness testimony and this is it he just two hundred and sixty four dollars into sixty five dollars of the record an immigration judge asks testimony didn't allow me to provide testimony that's something the board could fix it wasn't raised to the board at all it's too late to come to this court and argue that a legal error occurred when it could have been fixed below if it was raised properly  a motion hardship to the parents that would weigh into the calculus and change it it's not extreme hardship it's not even exceptional hardship it's exceptional in an extremely unusual hardship congress  that they're trying to get on the parents a home in florida so they don't have to go back to they go back and forth the record that's not mentioned by the in the case you mean about going back and forth they do have health records they do have health issues just talk about their health issues are back and forth is not something they're going to be able to do and definitely well i agree with you and i think most persons asian have to be able to do that just that just happens to all of us are lucky enough to live long enough turning to the children's testimony well we discussed that the immigration judge did not fail to present the children testify and expressed a preference it was within his discretion to express their preference we might have a different case if they forcefully argue that there was something that the children can provide in life testimony that they can submit in their declaration that could alter the calculus in this case but the never rains issue and that even before the war and even today we don't have decorations or anything to indicate what wasn't considered that would change the calculus it's unfortunate in these cases that most you know most persons who are deported have large families if young children a lot of these young children are attached to the parents it's understandable parental separations a horrible thing so but the standard is not you know the ordinary case and i want to quote from it says they must establish of the qualifying relatives would suffer hardship quote substantially different from or beyond that which would normally be expected from the deportation of anyone with close family members substantially beyond that was not met in this case and that's an even if you the court can reach his that would be substantial evidence review but as we're sort of delving into the facts of this case i don't think that the judgment what i'm asking of the court is is very simple there was a constitutional due process and legal error when he did not allow the children to testify he said twice say and also read what he said about the oldest child being able to testify at who is not a qualifying relative the oldest child so i mean what what he was getting at was if you need someone to testify if you really really need someone to testify someone who is of an age he would allow it which still does not cure my argument because the oldest child grown in it because he is age excluded is not a qualifying relative judge in totality is that you know if you really really want it we can talk about it and there is no objection made there was no well she said this judge she said they just want to be able to show support and that you know and he cuts are off and he says and they're certainly showing support you know even if being here and they can write you know write a letter and there's anything specific we need to ask questions about them we can have the older one testify judge my  process argument is specifically this when you set such a high burden exceptional and extremely unusual hardships this is an extremely high burden and now we've confined the way he meets his burden don't call witnesses only letters we know that letters written testimony is different than face to face testimony this court and every appellate court throughout the nation very often you know a due process your honor in my mind of due process violation is a due process violation the words she chose were she was trying to explain what the children were going to testify to she didn't you it's unfortunate judge she did not use the word i object she should have however might my point before was that live testimony is different it is it is what it is we hang our our so many constitutional hats on live testimony the right to confrontation the ri to remain and to hear all the facts that's all i'm asking thank you thank you both for your arguments we appreciate them the court will reserve decision