to observe the witnesses to look at every single piece of evidence that comes through as the as the parties prepare for individual hearing their aggression judge in this case went through a four hour hearing at the record again to identify the errors in fact that the b i had made during its appeal what we asked this court to review your auditors is that motion to reconsider on let's get right to exactly what you think is wrong with the board's so i'm assuming that it's a error is what you're saying is what we can look at is that they basically violated the policy of not doing think the error is your honor the b a a to the record exhibit to exhibit two is the form i two thirteen which essentially places a responded in front of the immigration and custody in portsmouth and then attempted suicide and that it's related to the alleged acts of the responded what about the test what about testimony at the hearing your honor the b a a cites to the transcript between pages one forty six to one forty eight during that testimony it is it is mr lay as wife who is test who's testifying during that part of the transcript in that part of the transcript the trial attorney is creating testimony is saying out loud isn't it true that this girl committed suicide only because of mr lay as actions and of course that the spouse simply says that's what was said during the trial we know nothing about it what we do know is that these girls had a really difficult life and that the time between the a legit act and the accusation of the act which is twelve years there are many things that could have happened and that the connection between and attend to committed suicide and the alleged act of the respondent is trained yet to be i the conduct only came to light after one of the victims attempted to commit suicide is that the same yes i do believe it is your honor and it is because the board doesn't say to again the trial attorney tries to testify as to factual findings in the criminal proceeding the trial attorney testifies that there was an attempted suicide and that it was a direct result of the actions of the responded mr lay as counsel objected to that testimony and the immigration judge says on the record that he would he would overrule the objection only because that is the opinion of the trial attorney that he was going to take it as fact but that it was an opinion but yet these are the things that the board depends upon to decide to deny the motion to reconsider in addition to exhibit two which doesn't have any mention of any commit any attempt to commit suicide or even the connection between an attempted to met suicide and the alleged actions of the respondent in addition to writing to the transcript which is misinterpreted and again taken on the excuse me the testimony of the trial attorney the b i a depends on and depends on documentation that was act that was connected to the legit act was substantial in the b i is decision however any documentation related to that theft offense was withdrawn by the government attorney earlier in the individual hearing there was no testimony provided at all to substantiate that that allegation and the immigration judge did not sustain those charges that were pretty against the respond and in the notice to appear which is the charging document so the respondent will argue that this case was improperly before this court because we are looking to review the discretion of the board of immigration appeal appeal and it sustained the government's appeal it depended on an accurate say titian's for the record and while the b a a as an administrative agency does have discretion to outline for the board of immigration appeals how it erred in fact finding and how the immigration judge's decision was sound and it was thorough so we would argue your honour's that this motion to reconsider is properly before this court in addition this court has held that in review of motions to reconsider it would be appropriate at times to also review the underlying decision and in this case the statement of the government with the record of proceedings and if it's reversing the immigration judge it has to provide a very thorough explanation and consideration at the immigration judge's decision and then issue its own decision we would argue that the the board of immigration appeals just kind of picked out things out of the record that sounded like the respondent writ we would get denied as a matter of discretion but that picking things out of the record out of context and misinterpreting the facts as it was you've presented before the immigration judge is a miss proper use of a discretionary power by the board of immigration appeals think you fact finding and sees me the fact finding role i do want to ask you a couple of questions about that because i looking through the record so i understand that petitioner is saying while the the board sort of made its own facts about about the victim's actions and the respondents actions in the link between the two and i guess i have a question for you as to whether the i j a eight even made a finding that there a suicide attempt used as i read the i j a opinion that it's simply state the testimony mentioned an apparent suicide attempt by one of the victims in concert with the accusations leveled against the respondent it can we read that is an actual factual finding or does it almost sounds like just an observation of some testimony mentioned but not relied upon or actually found found by the i j a what's your view on that it's a discussion the way the board reached this question was that the immigration judge noted that circumstance that and then again that is perhaps circumstantial that three thirty three twenty two twenty three where he's asked did one of your victims attempt suicide was his response there's also conveniently ignored from discussion before this court as to what the board rel upon was administrative record page two seventy one the board in addition to citing exhibit two and trial transcript pages one forty seven one four yet cites trial transcript page ninety six which get my father's urine or it gets into the details of the case not just the suicide attempts but also medical conditions that his victim suffered that were directly the result of his having sexually assaulted the all of this however gets into the point that the immigration judge actually committed legal error procedural error in that the judge would be violating or violated matter of roberts which the board pointed out in its decision again and measure a record page eighty three the second page of the board says just immigration judge quote may not go behind a record of conviction to reassess the respondents ultimate guilt or innocence so the board here is faced with a somewhat of a hobson's choice either allow the immigration judge to this individual's guilt or innocence when there's a guilty plea in the record and on that basis he was found removable so how is he removable for having committed this offense but now he's entitled to relief because he didn't actually do it or the circumstances there are his guilt or innocence which he sent the immigration judge simply cannot do if the border to ignore that then the board is violating its standard of ignoring its own that's a published court decision it can't ignore that decision there's ample case lots of the what's before the court now did the board engage in fact finding what facts were found no new facts were found facts were re weighed which the board is entitle to do explicitly by regulation eight c f r one thousand three point one three i explicitly allows the board to engage in to novo review of discretionary determinations absent the board's ability to review what happened here which included the immigration judge going behind the record of conviction there is the fact that this individual is convicted of sexual assault of a minor categorically an aggravated phone even after he is absolutely removable on that basis now whether or not there were circumstances attendant to that conviction does not obviate the fact that he is indeed convicted of that an example hypothetical example might be an individual involved in some kind of drug conspiracy that is convicted of drug trafficking where he was simply driving the car that might be something that the judge could consider to to mitigate that individual's culpability for the broader aspects here but what we have here is a serious conviction individual convicted of sexually assaulting two individuals from a question he has remedies available to him of which he's actually availed himself once already in iowa court he can pursue post conviction really feel can say there were facts that weren't before the court procedural irregularities perhaps in effect of  things like that but we don't have here is any allegation that he wasn't advise of the immigration consequences of his plea that he is now suffering the fact that the board properly  a new discretionary decision with which to share doesn't agree does not engender some kind of legal error ultimately if the court finds that it has jurisdiction over this question it is only reviewing the boards and the motion to reconsider and whether the of abused its discretion in that decision based on the entire record before the court and the board's requirement that it fall of its own precedent there is simply no legal error for this court to remedy so what do we do with the have subsequently dismissed for lack of jurisdiction a motion to petition or three of a motion to reconsider of that decision if the court finds that the instead reaches the discretionary analysis and discusses whether the board properly exercise discretion to deny the motion to reconsider that would be a denied petition for you the government argues again that the court lacks jurisdiction because to afford jurisdiction here would give titian of the opportunity to conduct an end around of several jurisdictional bars that apply to this court reviewing this decision this is a discretionary decision by the board in which it did not engage in any legal error it properly adhere to its own policies and regulations so ultimately courts are dismissed for lack of  we never said that the respondent was not convicted of a crime as is indicated in the record the initial conviction for the respondent was sexual assault on a child for which he did receive a fifty year sentence however upon successful appeal of that criminal conviction the plea deal was to plead down to a much for this opportunity