one the very comfortable way and i'll call one a far less comfortable way but the very comfortable way to look at this is to simply deal with the issue of did the judge make this just determination as a discretionary determination where but you do have jurisdiction to ascertain whether she made a discretionary decision and that would require that she considered both the favorable and negative factors and my position as i stand here and argue is that even tho measured favorable and negative factors in making this discretionary determination in thought she did not and the record is absent that consideration of positive factors which would lead me to say yes this was something that she did as an exercise of discretion let me ask you this let's assume that that actually just for purposes of discussion that the judge be there suggested that yes she was exercising discretion she exercising pure discretion binded discretion i mean cumbered by rules i don't think she did and i think we can still look back to the spencer case and we can and we can glean an argument out of that that there is plenty of guidance by which discretion is guided by extant precedent not the least of which the statute itself which even if we're going to say yes there's a catch all for vision at the end of it we can certainly say hey these are the categories of things where where statutorily she wouldn't be able to find good moral character and those those categorize things would in and of themselves be guidance as to what else could be a factor but also there's interesting things in that statutory left pointed out in another case which is not properly before this court but the idea of the habitual drunkard i mean if a judge is going to make a decision that somebody who maybe has  not be grounds for a finding of lack of moral turpitude both of your honors have just broached the topic near and dear to my heart i mean that's the number one reason why a judge should not be asking a respondent you know what happened what we were arrested for what were you convicted for the overwhelming odds are the respondent has no idea i always use the example of somebody who's driving in a in a car he's got two hundred pounds of cocaine in  trunk and he's got a little bag of cocaine in this pocket the attorney walks into court and says enormous suppress the stuff in the trunk and the prosecutor says just plead to stuff in his front pocket but when the immigration judge asked what were you convicted of he's going to say oh i was but were you conviction when it would come to making a discretionary good moral character decision i don't understand how a judge would not mention the fact that number one we have no record that these things are convictions number two if they are convictions they were  even end up on a cal the o j especially with regards to the shootings there's no there's nothing of a police report of an indication suggesting that this was any more than i accidently you know was trying on shoes and so i don't see t analysis that would go into saying oh i'm exercising my discretion and i'm exercising my discretion in this way because of these things and since the judge said i'm making this finding under section one hundred one asked eligibility from the fact that she has a segregated this issue put it at the beginning of the merits hearing and following questions about the crimes and the crimes only turns to petitions counts and says do want to qualify for because we don't know the statutory basis that we give it would necessarily need to be remanded your honor we need to be further findings on the issue of whether these that's i can't even call them crimes whether these advances are again and it's one reason why i'm very happy that this is genova because i think the review of the record indicates that counsel who was present at the trial was we going much of the you are great we're not going to substitute our judgment for the judgment the right the judge let him down a road i apologize for saying it but i think that the set up to this was and that the actions of counsel indicate that his understanding was in a review of the record doesn't necessarily mean that that wouldn't have been my that referring to the comments made by judge paez i would further comment that as a as a very objective matter these things don't add up to a lack of good moral character no matter please the court my name is manning evans i represent the government in this matter  favorable discretion of the immigration judge and the immigration judge in fact continued to the immigration court proceedings to give petitioner the opportunity to come up with the conviction documents relating to the child exercise discretion for release this is not a question of moral turpitude this is a question of good moral character and i believe that there is a difference so i believe that the immigration judge could properly rely on  do we know that it's something that actually rises to that level well your honor i think that when someone says an open court that they molested a minor that on its face even apart from whether or not any crime any conviction occurred at all it's a very serious event and i think the immigration judge clearly recognized that that it's the kind of events that scars people for a very long time and it was proper for the immigration judge to take that into account whatever the statute the person might have been a convict you know it would make a difference whether it's a misdemeanor or  but offered no further evidence on that point but i think the government's entitle to rely on the aliens admission in court until he comes forward with some other evidence that negates the fact that he's saying i molested a minor let me ask you this that this finding that and then for me the critical words are for other reasons such person is or was not a good maracle moral character and it seems to me  reasons you're not talking about that in your discretion you're talking about something that has a rationale you know just the plain meaning at that some sort of rationale and that would end that i c twelve fifty two so is that this court cannot review discretionary decisions and it has repeatedly distinguished between discretionary and the per se categories when it analyzes section want to one half but interestingly we've never confronted th a per se exclusion is actually presented i think the court's decision in ramadan is actually helpful in this matter if i may cite the vision or the decision that case that would be  d for twenty seven fed third twelve eighteen months circa two thousand and five and in that decision the court decided how did the real id broaden the court's  language that the court could review constitutional or questions of law constitutional issues or questions of law and the court said congress did not intend to confer jurisdiction to look at discretionary issues or factual questions when it wrote this provision into the law and instead questions of law are exemplified by statutory interpretation now it's possible that there could be factual issues that arise that actually  to the level of constitutional issues if there is a gross mr determination of the facts such that due process might be violated i think then the court might be able to go beyond the statutory interpretation type of questions and say we have jurisdiction to completely arbitrary then you have a constitutional issue but i don't believe that's the case here you have a immigration judge who conducted a fair proceeding offered petitioners counsel the opportunity to conduct direct examination before he deferred t think the court can say that your honor because the court has to give meaning to the fact that there's a jurisdictional bar for discretion and determinations and i think that what i want to ask the catchall provision is clearly providing for jurists refer a discretionary determination  well the the ramadan court relies on a seven circuit decision for the same proposition they cite legislative history that talks about the narrow scope of jurisdiction conferred by the real id act i'm talking about