engage in a balancing process there are mandatory things that have to be able to happen he didn't do that he didn't do that after he was told to do that and that's a problem now if this new regulation goes into effect which says you don't have to do that i intend to be only perspective doesn't that indicate that where they haven't made a point of saying this is only perspective they mean the fall of the general rule that it will be a portable going to my understanding is even  to be queer and in me putting this a different way that the sole basis for your argument that this would be perspective only is that you are anticipating if this is wrong will get if it's passed that the it will also say that again fact it goes out of its way to say it recognizes that family reunification you know was a significant thing but what it doesn't say is an inner immigration judges you have to do this and that's the whole i thought and i made it misread it but i thought that was the whole point of your argument your whole point was the regulation doesn't give a nigerian option not to do this and the i g here didn't do it and he didn't do it twice what's your argument on this point though judge jordan has asked you several questions about what the effect of regulation is going to be as it relates to family unification and  that it's no longer a mandatory consideration it's clearly part of those factors that should be considered so what how would you articulate the absence of that consideration going forward if if the if the i g is no longer mandated to consider it what should be the consequence of not considering  could no longer be that there's the agency is violating its own rules and and not taking into account something that is required to take into account or a procedure it's required to undertake with the federal the regulation is now but if the regulation and it's mandatory character is a woman a did what gives us jurisdiction to dig into what the i g says if i did he says i'm doing this is a matter my discretion and i've considered the off the government's position they don't hold to still just decide this case yes your honor i think we should move forward when we get impacts this case i also agree there's nothing explicit in the discretionary denial removal portion of the propose reg that says that applies retroactively it does say in the criminal grounds discussion which is the majority of those rule that it will only be applied prospect of way there's an absence of that language as your honor pointed out but what's the general rule with respect to changes in regulations well i would not apply to litigation in process well i also believe that the rule would be but didn't didn't specifically say would the truck leave the pipe only prospect so i think the situation where the proposal could come into play would be if the rule if they did is court were to remain in this case back to the agency the rule where they go into effect then as in the way that it is currently construct is it or is it not a general rule that a change in a regulation is a political to a litigation process in other words it's not a retroactivity analysis  land grab but i have i appreciate the court's point i point it's a serious question trying to get you to answer that question as a matter of law what's the government's position with the government believe that it would only apply prospectively  balanced the factors and looked at with the fact that he determined that mr martin not experience past persecution in sri lanka he waited for six years to depart lived worked openly he came here to the united states with no cl the exercise of discretion what i mean well what difference does it make if he says if the regulation says here are the things you have to consider and you can read to me and decision and see he didn't say anything about it what what difference does it make if he utters the word discretion well he yes i understand it is difficult to follow he did fight but it's not difficult to follow it's just not with that record but the particular record on this case how how could we possibly be comfortable that the i j a in fact considered something that he expressed lee states he's not going to consider live in sri lanka and he said she will make a complaint she has two children so therefore she has no problem you know temporary thing else about her what you know these are all interesting things you're saying but i'm not getting the sense that you're being responsive to our questions the question that's been put to you is what do you rely on other than the the bare statement i've exercised my discretion and a citation to regulation no comment about it except i've looked at it what do you rely on if anything to support the assertion that the mandatory balancing took place and that the court consider family reunification because that is gaza you know that that's it that's the or about wanting to have him come join to the united states is there anything in the regulation that puts it says to the i j a hey if you don't get a lot of information here you can just ignore this you don't have to balance  then what what is the relevance of either that or the existence or nonexistence of a presentation by the petitioner of information in this regard you keep telling us well they didn't give much information but the regulations for this quote factors to be considered will include the reasons for that and reasonable turds available such as reification with spouse or minor children when what in the air makes it relevant how good a situation so there was no testimony regarding his family's that i did not know about it he simply said of the regulations and i consider this sort of an ex just argument i considered all the factors and reaffirms discretionary decision the nd time around