know the borg look putting aside factual findings for just a moment by the i j a if the issue before the board is a legal question or a discretionary decision  at your argument is that in doing that the board made factual improper factual determination yes your honor the board in this case in gauged in four secondly it wasn't quite that i mean the i j found that more likely than not the petitioner would rehabilitate it was a predictive finding base on probabilities that's one piece of evidence the board said that's nice but we will his three prior convictions and his three prior inabilities to stay off alcohol by going through similar similar schooling that she's going through now so my question to use this given that they conduct in the pen in fact finding here rather than differing to the judge's factual findings about petitioners rehabilitation incredibility under clear error the board and permissive reengaged and its own fact finding in addition to the findings of the judge and the board are contrary the judge never noted that the petitioner had possessed a just regard for the laws nor did it know that it that he possessed pos public in fact the judge actually found that the court what's persuaded by respondents actions by his steps and living a sober life by his reliance on his family and so rehabilitated on the one hand but we see his record and his record weighs more heavily than that fact phone so we're going to find that he's still going to be a danger to the community and therefore we're disagreed with the judge's findings that in fact petitioner was generally rehabilitated and that let me ask you if that sentence were not in part of that of the b o h decision would you still have the same or given the sentence rehabilitation it also discredited his sincerity of his rehabilitation and his credibility as a whole the judge explicitly determined that the petitioner was credible and found and gave his testimony full eviden continuing wrist as i thought i thought it was the continuing risk that was your strongest contradiction because it seems to me that the i j a says he that petitioner is able and willing so has the willingness and the ability not to drink any more and drive which would mean he's not a risk and is not predicted to reoffend and the b i he comes back and says he's continuing risk to the public which that seems to me your biggest country to the best point of contradiction honor i agree with that and in addition to the you know the judge also noted that he had finally seen the light and quote that he had hit rock bottom and that he understood that he was at the verge of losing his family his entire life and they and the thing about that is i think someone could have the intent not to reoffend and yet be wrong about whether they're going to succeed in carrying out the attempt but this is able and willing means it's not just the willingness it's also the i j a said abel at that's where i feel like the to depart from each other from what the guy has said and ultimately the judge was there to cross examine the witness st hand the morning your honor to me please the court in runs if the attorney general this petition challenges the board's determination the petitioner does not deserve adjustment of status as a matter of discretion in light of his serious history of dui offenses now that judgment was based on the discretionary weighing positive and negative factors and petitioner does not dispute that such judgments are generally unreviewable instead petitioner terms to overcome the review bar by claiming that the board did not properly defer to the immigration judges underlying fact findings now that argument is flawed for three reasons st the board here expressly recognized and indeed restated the immigration judge as factual findings and merely really weighed the significance of those finding but how do you deal with this able and willing i mean i j i thought that the petitioner was both willing and able to carry through with that and i don't see how that be i i took that as a fact finding that it gave deference to well your honor no court this court nor any other has least an immigration judge is finding in the discretionary context in the way that you're talking about so to say able or willing itself that either one of those things means that the board then cannot revisit that evidence without affording clear air deference that has never been how the board reviews an immigration judge's findings in the context of discretion is another prediction of future events a fact finding i thought we did did have a law on that and i would have thought this was a prediction about future events is the petitioner likely to do drunk driving again that's a prediction about future events that's so that's right judge friedland i think there's no question that there is law about whether a predictive finding and not just that there's other sort of strains of findings that this court has considered the board is considered factual whether it's state of mind historical facts predictive and this is an important point one thing that can't be ignored here is that all of that body of law arises in a separate context not in the discretionary context and petitioner concedes as much in the reply brief the page seven all of the decisions that talk about what should be considered and when it should be considered factual finding again predictive findings historical facts state of mind that all the rises in the separate context of asylum withholding are saying that because this is a discretionary context we should have a different role for whether a predictive finding is a fact finding i'm saying that the way the board in this court has construed findings in the discretionary context is to not treat facts or what would be considered a factual finding the same way absolutely and there's an important reason why there are you saying there's an absence of case law telling us that it gets reviewed as a fact way that tells us that we look at what's a fact and what's a lot of the different layers that we that we that the court will actually reject that line of cases in the discretionary context no we don't but what you have here is a substantial body of law in this court and then a few published decisions and others which have specifically addressed these arguments of the the other courts the nd seventy eight circuits have addressed the specific argument here which is how the board is to treat rehabilitative findings in  in all of those decisions again nd time than a circuit we filed twenty eight gillette in the th circuit decision last week in all of those cases the board we have the same circumstances that we have here exact same circumstances the board is reversing in immigration immigration judges discretionary grain to relief notwithstanding the fact that in all of those cases the immigration judge had rendered positive findings with respect to rehabilitation that it was genuine and that it seemed like at least in the nd and the th i didn't think there was a clear direct contradiction the way i think we have here and it seems like what those circuits that is we don't i think you're contradicting the facts we think you're just really weighing it taking the facts as given which i think everyone agrees would be an ok thing to do both agree that that is ok yes i know i agree with that i think petitioners argument comes down to saying that they agree with that but then trying to describe the findings here as having to do with something else so that they would need to be deferred to petitioners argument really ultimately says and means that the board cannot reweigh the facts or cannot read where the significance of facts there's a simply no way to read petitioners are humans as saying anything other than that the board cannot come to the same evidence about rehabilitation sciri of it you know the criminal history in all those things and then re width and then be able to relay the significance but i think they're i don't understand how there's not a fact finding here so so it's one thing to say ok we're taking these facts but we think they mean something different as a matter of discussion it's another thing to say you i j believe that this guy is never going to drink or drive drunk again and we just disagree we think he is that's a fact it's a predictive fact and we always treat predictive facts as facts and so then i mean the i could have said we think this is clearly erroneous but they didn't you're right your honor but the board has never treated those types of findings the discretionary context with respect to predicting this again i admit and because to do so would mean that the board cannot reweigh the significance of them which is exactly what the can find something is clearly erroneous i mean what's the problem with that as the rule the normal rule apply in this context because how exactly would that work then your honor as a practical matter the board would have a series of factors family ties long term history long term residence you know rehabilitation employment and then at the end of all of that you know recognize everything that immigration judges said and then instead of just being able to  which is what the board is not only allowed to get required to do it would say i can read where these things but then this thing i can't reassign the wait until i find clear review and to force the board to do that would have extremely would have strong practical implications specifically about predictive findings right but i don't i don't think that that distinction again is what we need i don't think it's only the th circuit that's who circumstances bear on what we have here i think in the nd seven those decisions also addressed the same sort of assortment of you've got a mental state you're talking about the future of course rehabilitation has implications for the future we don't deny that but again whether somebody intends to do something and what might happen whether they pose a risk to society all of those things those are all altogether address new factors or rescue evidence the immigration judge has not considered him or herself but yes the board can the factors and the evidence that the immigration judge has relied on and say no we're going to put a little bit less weight on this factor with regard to rehabilitation a little bit more weight on this factor with regard to criminal history they can be you know you can say we're going to put less weight on the predictive accuracy of the i j a and more on this man's sort of his background that's right i do want to i didn't in this case or how do we know because they say we don't find the evidence persuasive should we remember this would be so they can say exactly how they're making the decision why no undermining the evidence of rehabilitation the language there does not suggest anything other than that the board was putting more weight on the evidence of rehabilitation and less more weight on the evidence of recidivism and less weight on the evidence of rehabilitation that is exactly what the board has always done in this discretionary review context and that is what the order also said he's a danger to the community which contradicts the i just finding that he is never going to be a danger to the community is never going to drive drunk again your honor and that's that's not what the immigration judge said it's actually an important point i want to be clear about a lot of what petitioner argues sort of relies on the premise that the immigration judge came to one binary conclusion about rehabilitation the petition was rehabilitated that is not at all what the immigration judge said the immigration judge and rendered several findings with respect to rehabilitation that were positive generally but the immigration judge himself expressed doubts about i mean how do you either how can you interpret that both able and willing to take the steps necessary to ensure that he does not drive drunk again and more importantly never drinks and drives again how is that anything other than a fact i mean that he's not going to drive drunk again it doesn't go and i see my time's up here are so so judge friedman i think there's no question again that implicates future conduct there's no question about that but what this court and what the board has done in reviewing those findings in the past to say we recognize this is what the immigration judge is found here and we recognize that th future conduct but we can absolutely come back to this evidence and say we see it we see what you've said but we think that this other evidence with regard to your criminal history is simply more signal that's not what the cia says the guy who says he's a danger so it is a contradiction to this prediction and maybe you're saying maybe i can do that because it's this discretionary context but that's a pretty bold thing you're asking for all that i think is new and you're saying there's no law i don't it's i don't think it's a new rule i think the court has not in the context of discretionary judgments reviewed factual questions the same way and i do want to be clear that again that evidence about what this person will do in the future to say that that to say that that is a predictive finding that's fine but then to say that you can't put more evidence on receipt of ism and criminal history without a clear air review is the opposite of how the board and the courts have treated the board's review of immigration determinations it is contradictory there's no question to say we're placing more weight recidivism and less on rehabilitation that is definitely and necessarily saying this evidence which contradicts this evidence is more persuasive to us but that's exactly what the board has been able to do and that's what this court has sanctioned  court said the board of applied improper standard review basically because the board didn't consider any individual as evidence not case the board just relied on another board decision rather in the evidence before it and said look in this other board decision they said haitian prison conditions were not that bad so no care relief here this court said that's not even an air of clear air that is actually not even adequate de novo review because that finding as to future harm also happens to be relevant in the cancellation context in that case this court said let's also remained cancellation so that once that tainted finding is corrected we can reconsider the cancellation otherwise this court one hundred percent agreed with how the board treated the discretionary factors there because the believe there's a little time left for continuing risk to society and that he possessed just regard for the law the judge did not make those findings as such the board engaged an improper fact finding in that case the board do not reject or change the judge's findings and petitioners cade's the board did change the factual findings when it stated that petitioner was a containing risk to society what's wrong with th evidence the board re weighed was a new factual finding that the board created on its own and it substituted those findings for the judges for that reason the board and gage an improper a fact finding which it cannot do the j fact finder is the has the ability and to question the witnesses to review the evidence the board cannot properly do that and by looking at  all right thank you also we appreciate your arguments interesting argument