in its comprehensive decision based on an extensive record of over nine hundred dollars pages of material the immigration judge found that mr cruz met his burden of proof on the eligibility requirements and that he merited favorable discretion exercise of discretion on his request for cancellation of removal in making that determination you know gratian judge consider the entire record and balance the numerous positive factors and adverse factors get the evidence and found particularly compelling facts merited cancellation of removal as we have explained that our brief in reviewing the immigration judge's decision would be i had violated its own when you are saying the real reason that the b s a disagreed with the idea is because they look at the facts differently and the question of law that you're identifying that would be the premise resurrections as interest the truth is that they looked at those facts under the wrong legal standard is not just a way to get around the limitation that you need to identify a legal error as opposed to a difference in the way that the b r d a balance the facts in this case and why is the standard by which is considered the fact  talk about the what those facts are which i actually also want to talk about but before we get there i mean you're saying that the essential difference between the b s decision and the i just decision was a difference in the way they saw the factual record it wasn't that the idea applied a rule of law that denied your client release you know i i don't think i don't think we agree with that characterization your honor i think that the way we look at this case is that is allowed to weigh the facts differently than the right i mean that's what an exercise of discretion is well i would give more weight to these considerations in the areas allowed to do that judge from the inference ability to recover from the injury and its continued health rendered the crimes less your we disagree a victim's ability to physically recover from a crime does not necessarily render the crime itself less atrocious in the discretionary context inference recovery whispered to it and are our issue with that characterization of the record and that statement is that the immigration judge is determination as to the seriousness of the t and how to evaluate that in the context of the criminal conviction was based on over six hundred pages of medical records and i think it would matter little if any written we read a moment ago that the b l u is allowed to weigh a balancing weighing of evidence in order to decide whether to exercise discretion i mean isn't that what the b s a is doing here and if we said that the dia the i q characterization of something is more or less serious and therefore entitled to more or less weight wouldn't that essentially mean the da would not be allowed to balance the equities differently and comes with different discretionary decision which we know that they are less well i don't agree with that your hon from the perspective that the medical expert opinion in the case concluded that the recovery of the child from the trauma was as it was because the trauma was not for the year and so when the da looked at but we put more weight on the conviction than on the visual circumstances isn't but they don't they're not operating in the universe of two different sets of facts they're just balancing them differently is that isn't that  an issue of some inconsistency between two separate statements to the police the immigration judge heard testimony concerning mr cruz's explanation for those think consistencies found them to be minor found mr cruz to be forthcoming about him to be testifying with remorse both as to his traffic related convictions and as to the conviction for reckless self of the child and overall declined to determine an adverse credibility determination as to mr cruz when you look at what the bialy has done they immediately risk point to inconsistent account of what occurred from mr cruz without any consideration of the fact that fact that there were inconsistent accounts and then the idea is analysis was well under the circumstances they can be explained is that piece of the i g and also that's a factual finding about whether it's adequate you know it it's pretty clear law that the cia cannot make its own credibility determinations and we think that the way that the a and handling that particular statement of inconsistency is on the record and then proceedings would be what would be true for the b s a to provide a complete review of the record and to make adequate explanation of where it is overturning the determinations made by the immigration judge making different factual findings and giving some guidance both to this court for purposes of judicial review and practitioners in the field of why exactly it comes out differently on the basis of such a thorough record presented by the immigration judge that's treated so lightly by the b i a well you're you're what you're saying is that you want this be go back for  before the end gratian judge as to the basis for coming out so different than the immigration judge in this case we believe they've done so because they decided to make their own factual determination contrary to the immigration judges record and that's infamous above without demonstrating clear error review something they haven't done here very difficult political medical record as to the severity of the injuries to the child and i think that they be i am is in concert with what the the judge and good morning greg pennington for the attorney general so the board reviews any discretionary determination from the immigration judge the noble it owes no deference to the ultimate discretionary decision and it doesn't have to find clear error in the judge's findings in order to reach that decision because what the board did here is relied explicitly on the immigration judge's findings and just shuffled around those finding the ninety's mid to late ninety's but he's been in the country for twenty years yes judge and and he is the incident involving the trauma happened when in and twelve and he was picked up when he by immigration he was picked up so after he was sentenced on the conviction for taking this and then he was released and then he had several other infractions traffic related and then he was picked up for a forged inspection sticker on his car and i think that's when he was when he was released on that because he was on probation while he committed that forged inspection sticker offense it was reset to a year on the reckless assault conviction once he completed that year in the new york penal clearly reflect that yeah i believe most of them were he was driving without a license so he had his license suspended for failure to pay a ticket and he just never corrected that so he just kept driving on the suspended license and he kept getting arrested and convicted and sentenced for roughly thirty days to sixty days on those and and  where did he was he employed at all there was a period of disability or something wasn't there he was in an auto accident that's correct so i think that he had limited employment and ten and at the time of this removal proceeding i don't think there was anything study before that before his accident he had worked in the pet food industry right and  record was that one that sounds right yet he said that it was an inspection sticker he couldn't afford to have his car up to par so it would pass inspection that he used a fake inspection sticker twenty years that's correct ok this has been very helpful so i'm sorry interrupted to the that's perfectly fine so where i was leaving off w s the severity of the injury you know a lot been said about the board citing the statute of conviction and it isn't and that was well developed in the factual record  you know he was originally charged as removable from the united states for several different grounds of remove ability based on this then the other conviction and you know in that proceeding he conceded he was removable and  convicted of this crime and that it was a crime of child abuse that they removable and then the government attorney during the removal hearing read the statute of conviction into the record to trying to figure out how the infant suffered this serious injury that is required under the statute and the immigration judge found that he was convicted of this statute and cited the language of the statute so any allegation that the board d pulled this of the argument is the court can't do anything because it doesn't have jurisdiction to get into this that there was no so what the immigration judge found was that mr cruise ship the child took this three month old child but that in his balance because the child is healthy today and because you require recovered quickly that you found the crime left the beer and then if you look at the board's decision they say the same thing they cite the immigration judges finding the fact that mr cruise ship in been noted that he's thirty years and they just disagreed that the infant ability to recover from the injury and what they basically said is we wouldn't even be having this discussion if he didn't shake the end in the st place and i'd give the court another hypothetical where maybe someone is convicted of robbery by force where they use a firearm and shoot somebody and immigration judge says well you know the bullet just grazed his arm so we think it's less serious and then the board they can view that in a different light and say this is still a serious crime and we don't believe that the victim jurisdictional bar works here so we have jurisdiction to review questions of law and constitutional claims we do not review factual questions are matters of discretion here the analysis is a matter of discretion because of deciding whether to grant special relief that's based on fact but the facts are evaluated pursuant to certain legal standards so would it be enough to get around the jurisdictional bar if we thought that constitutional claim or a question of law and the court is held that you know if the board applies for wrong and or to review for and then that might be a legal question which the court could review and send it back but fact finding there really isn't any indication that the board found any fact in the board's decision is very clear on citing the immigration judges findings it listed all of his favorable factors including the twenty plus years and the general employment and the family ties and it just said that these criminal what about this issue so i understand what you said about the crime being serious but what about this issue  mentioned this earlier when the immigration judge himself found that mr cruz gave inconsistent accounts of what happened to the end and in the end declined to render an adverse credibility finding which i'm sure the court kno and the fatal in and of itself to an application for really based on the real i d act but here's the board just recognize that he gave a consistent d account but in the end he testified that he stuck in  that's consistent with the board's duties they look to be when it's weighing a negative factors such as the conviction it looks to the conviction the circumstances surrounding the conviction the sentence all that is taken into that we're looking at those findings and we just need them differently we think that the adverse factors these findings outweigh the positives and that's a fairly discretionary weighing of the factors that the the incident with the child happened in two thousand and eleven he was picked up by i think two thousand and seventeen and with help for over two years which is far longer than any criminal act that would be applicable to the crime of which he was convicted  secondly i want to turn to the issue of you know the position of the government which is that this is all just a matter of discretion for which this court wrecks jurisdiction and we dispute that because it would really be tempting to say that the  view the facts differently and determine contrary to the immigration charge but in this case the basis for that is the statement that the incense recovery was fo a much clearer statement as to when they dispute the fact that i've been found by the immigration judge based on a record that in this case was in excess of nine hundred pages i need to be much clearer about how they do that and follow the right standard of review and in this case we just don't think they did it thank you thank you very much