the judge is in her decisions completely leaving out the principle hardship of the few men responding to her her having had recent brain surgery i was struck in this case by my review of the transcript of the hardship issue and then in her in her decision not only did she fail to address this this brain surgery that the female responder had recently had in all the effects of this would have on the u s citizen dau lived her whole analysis of the of the hardship hardship it issue was about a page and really didn't go into any details about hardship at all i know this court is not it is not able to make a ruling about hardship per se in fact the only way that you can even look at hardship is in terms of prejudice in the due process argument that the court can make a ruling on whether or not the judge applied the correct jurisdiction to review questions of law and and cause intuitional issues even when the underlining thing is a discretionary determination let's begin with that where is the where is the judge's where is the does not reside a legal standard all the only sense that she recites even purporting to be a legal standard is that she is applying is that she is assessing extreme an unusual hardship right and that's that standard we've seen i've analysis and you know as a plenary matter to identify and weigh the relative quantity and quality of hardship had she even reciting those standards under this court's president that would not of then nothing if it was well i think that was in the context of relating the testimony of all witnesses i think that's a misstatement of the testimony because she was not healthy at present and visiting the doctor every six months she had had an actually attached as supplemental material in the during the prior to the decision your honor that that's in several of the second hearing now there was a first hearing that was continued because the idea said tentatively i think you satisfied hardship but i have a problem with the duration and her stay in the united states so there was a a a continuous correct discraft and somewhere on march eighth two thousand and four something came back on a hearing thought to be relative to the testimony of her stay in the united states the firm there was an attempt to contact the doctor on the phone and fin remember the i just said no i'm going to go on the fact that i don't think you've satisfied the hardship now these documents you're talking about were attached to the pleadings that were filed for that month that march two thousand and four referred to which have doctors reports which i quoted in my brief which states that you know that these these these are the evaluation of the m r i on september the eighteenth two thousand and three the recommendation that she  care people all around the world need medical care is there evidence in the record that suggests that she could not get adequate monitoring of her medical conditions if she were returned to mexico i think that was the th whether or not that her condition to be properly treated in mexico that would have been part of her legal analysis it's one thing she would need to identify the factor which is there's a medical condition that the mother suffers and then she needs to then do the next step which is through analysis concluded by the fact that she did not for instance bring up any evidence that in mexico or treat her brain to night now you throw me because we're looking at the legal issue and the legal issue is whether the totality of the circumstances were considered just by b as clearly showing you where she did or did consider the  condition of the female if you will the mother now he did say that the i j a did say that she was healthy and you've restarted it at present but she did have surgery etc now if you want to go down the next level and why i asked you about where this information was if it was before the i j a now we're talking about the discretionary function if if she had never mentioned the mother at all in the decision then i say well we've got a problem here because there was evidence in the record there all that ev ence on the record we can drop the next level lower i'm getting a problem with your argument because i can't quite see where the violation occurred of the legal standard of phylicia and for the legal standard because  she ignored the fact or completely in her legal analysis yes she mentioned it in the recitation of testimony she never addressed it in her legal now relative and being an issue you know you place the law i know i know you're breaking pla earlier she has acknowledged that that the that the mom did have a medical condition i think in the context of everything else that occurred in this case it's cannot be construed as back mentioned where she was clearly in a hurry the mandate from the chief judge to complete to complete the case the fact that she had reverse that that you cited in your briefs i remember those cases just sort of set the global standard i e you've got can consider all of the total circumstances what we're down down into now is when the considering the total of the hardships when you're talking about hardships that are suffered by the trial here in this case because that's the only way these two folks are going to be in here where is the case is that if you don't explicitly talk about the hardship to the father the hardship of the father that goes on to the child and then the hardship of the mother that is fostered onto the child which then provides the relief where is the case it says the totality means question you so carefully about what the judge had in his record because i've reviewed the record but i want to go back and see specifically which you got in there you put your whole case is i take it in writing before the judge and you made in your brief references were the judge could have found the fact that she had a continuing problem because of her brain tumor is that correct i believe that's correct i wasn't the person i was and i was in  first that in your brief you made reference to these additional filings that were before the judge before that march hearing there was supposedly to be done relative only for the three of how long she'd been in the united states so that the judge as i understood your argument had everything in writing before her before she made her last decision well not everything i mean there was there on our materials you know what just a second now i mean it's a different issue but look at it in terms of she had evidence before her at the time of her decision that went to the medical condition of the mother quite no i understand it precisely but the medical condition of the mother as far as delineate by the judge in her decision was that she's healthy now and she's going to have to have six months checkups you told me as i remember that in the record in the supplementary rocket it not only had that but it had shown that there were there were m r i eyes or something that showed that she was continuing why hasn't the judge in the discretionary function taken everything you've told us that i just did it and came up with this decision that seems to be a in the in the lower level below the the the legal standard i t was all there i got the impression that for some reason if you look at the motion to reconsider the notice of appeal and these three through the v i i you've indicated that there was more evidence a letter from the doctor regarding mr southie those medical conditions showing that she still suffers from symptoms of humor background evidence a separate that's arguing what you said was a discretionary function in the appeal brief to the to the was a discretionary function of the i j a well i think that that's a separate set of findings that we taint council what i'm getting at is that there were there was medical evidence before the  court at the time she made the decision which indicated that the petitioner was not completely healthy well and then you know when you're there was before the judge and the judge when i was healthy isn't that the judge saying i've looked over the evidence i think she's healthy enough that she is not going to be in a position in the trial well i don't think in a statement of facts where she is reciting testimony which has not been challenged by the government that is this is undisputed  evidence that she's presented that she's not healthy that they're judges and this is kind of you know not not the fact is that she if she were to make the conclusion come to the conclusion that even with all counsel's prepared to present retain counsel in their appeal to the b i i stated we have this evidence that we wanted to present and we did not we were unable to present it which would have gone to more specifically because you were prevented from introducing it at the hearing or because you just did i think it i think i think what you didn't did because you thought maybe it wasn't necessary based on what that i j had tentatively ruled before the i is this is the thing government at the i j a level never presented any sort of evidence to dispute and question the judge's tentative ruling of extreme and unusual hardship and without any additional evidence presented at all the judge shifted course but i think i don't think we need to go down the constitutional road i think we can get this we could come to a conclusion on the legal issue itself in that and i  for seven eight after third nine seven two and this is a case where the court works circuit with the ninth circuit and it's two thousand and i believe six it could it could be two thousand so i don't have that directly in front of me your honor night this is this court and it was in the context of  review cat cat claims for certain kinds of of legal errors in ways that we do not get to to review our chip determinations the whole pressure will jurisdictional problem here but you don't have a cat in the cat context that you do have here i agree that of unusual hardship decisions below but have analyzed them for whether a correct legal standard is applied i think those cases give you know open the jurisdictional door and then looking at maybe some analogous  cases on a cat issue is informative and and i point out those cases where extremely unusual hardship has been reviewed at this level after real real id in my brief and i can also refer to you are too afraid  the court had promulgated under willful blindness the point being that looking at that a legal analysis it was from looking at the legal analysis that's a basis for us to kind of reverse engineer as to whether the judge applied the itself because she never actually concluded that his medical condition want to be treated in mexico she just simply concluded that she did have a job in mexico that he'd be able to get a job with mexico that was critical because it went to that it went to the point as to whether he would be able to support his family and perhaps with you be able to get insurance and the insurance question had a it certainly had a bearing on the wife's well being as well it may well have however  in the context of the slipshod manner in which is opinion was it was delivered i mean i think there are some serious concerns and i would urge the court to remain and and simply make it have her in crystal clarity apply the correct legal standard totality of the circumstances identify and weigh each individual hardship she did not actually make she did not weigh that hardship and i think we don't need to go i think the constitutional issues are dragging out tick and i think that those require reversal but obviously if we can't get there on simple legal layer and just dispose of this case in a  that's the appropriate solution to to just be absolutely certain that this judge did what she needs to do which is a way every factor that and and and her legal analysis that was so thin that you know it's this court's duty to you know provide some oversight to immigration judges especially where their opinions have been adopted  controversial statement at ph one forty two after the female testified that she did have a tumor has been removed she was back working full time as a restaurant manager and she's crosses that exam and  the judge if you look at the winds five there is one forty to petitioners counsel says no more for the questions your honor so then the judge asked who's your next witness decision nobody at that point is that we have more harsh of evidence your honor we'd like to you know put on dr so and so would like to do this and that no one said that at any point and then we come to this is a full page before the controversial was behind this transaction this transcript of the transaction is talking about arjuna agreement with counsel the fact that in their moving papers or in supporting papers wherever that there was evidence relative to the mother's health the tumor if you will that showed that she was not healthy i e that there were tests or whatever that would show that had a continuing problem with the tumor in her head which would be in contrary to what the judge found that she was healthy well she had had a tumor yeah i'm not i know that booth and what's crystal clear in my mind she had a tumor that was removed from the side of her head or something and it that she then went back to work and she was working what i'm not sure about is what the judge had in her possession at the time she made these rulings the transcript portions you're talking about whether she had some evidence further evidence of the health of the mother beyond the fact that she had the two or that she was relieved that she went back to work and it seems to be that that seems to be the question was that here that all we had some other brief so i'm just wondering what you what you think that the the i j a had in her possession rather relative to the current or further condition of the mother after the operation all in evidence and that goes to this question and that was my question so if you're setting up an illegal and how if you go you agree though that if there was legal air we can review that absolutely ok if if we are reviewing legal there how deep do we have to go into the decision of the i j a to determine whether the totality of the hardship circumstances were considered i think it's important i think to allow anyone to characterize boardin immigration the session and the facts as they are in this case when the determination that is inherently discretionary earth to satisfy that legal standard it i may have to go to petitioners who want cancellation of removal is going to remember it based upon the fact that there would be hardship on the trial that's right your honor and now they migration judge you know has to concede there has to be some prejudice to the case for there to be a due process violation which they're arguing in this case that they considered that can't be done because that's their discretion and i think what they were arguing is that i gave should have discussed the hardship to the child based upon the mother's if you will brain tumor condition that's right and that's  that's a factual analysis the which goes to the weight of the evidence which is a discretionary determination so if you think best so if the facts before her would indicate i j that is the facts before the idea would indicate that maybe the tumo condition was ongoing and may be detrimental to the mother tremendously the child that the i j a and finding that the mother was healthy is still within the discretionary function so if you're saying that's right any kind of that factual analysis you are of weighing the evidence this medical evidence against our medical evidence and is a factual or finding which goes to this question which this court has indicated it's not in the business while ation and arguing we didn't get to present this evidence they don't say what evidence they didn't get to present and again if the would have said you can't presenting evidence but in this case you know that actually says you have other witnesses what do you want me to do their they indicate that they were led to believe that the hardship requirements were met in the case and they only needed to submit additional evidence regarding mr saw sarah was a physical presence they said if they would have new in their heart known at the hardship case was still an have provided further evidence on march eighth three months after their first marriage hearing such evidence would have included in an indicate an update letter from the doctor surely she still suffers from the symptoms of super tumor background evidence regarding an availability  questionnaire fact is that there was no hardship it seems as though they've raised the issue that they were precluded from filing evidence are presenting evidence that they had more evidence york in  and references to the transcript would be seen to be contrary at the hearing is that would that be your position that would be my position then rested their heart they presented all the hardship evidence digests that what else you got you got other witnesses and they moved on to the when the next merits hearing came about evidence that just simply didn't was not in existence was then in existence what i mean to say your honor is that between merits hearings there was the ability to get an update letter from the doctor this was not something they could have submitted at the prior merits hearing before the judge ruled ten we think we can you point to us where you were precluded from submitting that i mean it doesn't seem unreasonable to me that twelve and that's the case where this court explicitly distinguished between the concept of legal layer versus rewind the evidence and th precedent in defining the crime this argument raised a question of law it dismissed the government's contention that this was simply we rewind the evidence and this court said well we cannot reweigh evidence to determine if the crime was indeed particularly serious we can determine whether b i applied the correct legal standard in making its determination and in doing this it looked to the analysis that the b i a opinion set forth including its reliance on one single fact as opposed to additional facts which would have made it clear that they had been applying the correct standard as opposed to this one particular fact which which made it clear that they were not applying the crux the legal standard and just shifting back to that legal argument without going to the due process issue looking at the legal analysis where i think we need to look i don't think we can just simply look at the factual the statement of facts by the i j a i think we need to look critically at that one page a legal analysis to assess whether the correct legal standard was applied there's no legal standard