i'm quite aware that justices here have reviewed the briefs and i'd like to make two points with respect to the first issue which is the issue of abandonment  believe and as i stated in my brief that there was a clear violation of due process there because the trial court which was required to apply the substantial evidence standard which was an un the other prior cases did not make a finding that there was clear convincing evidence of abandonment  particular the trial court did refused or even neglected to consider the fact that my client even though he had been absent for two years continued to have if you had his family residing in the united states he had u s citizen children here you have property here he expressed an intent at the hearing that that he never intended to stay in mexico for two years that basically he was undecided that he was going to stay there and in fact he did return to the united states to basically face the music as you know i have the right case here my understanding is your client did states to avoid prosecution for a felony that's correct your honor he did what standard would such flight and to your absence not constitute well it would not constitute a benefit because one he returned and he was when he returned well first of all he was still subject to the jurisdiction of the of the us courts in california he left the family and a due process violation and what i'm getting at here is basically that the trial court did not look at all the facts and did not basically require the government clean to prove by clear and convincing evidence that he abandoned he neglected to do you know i thought he admitted that he admitted that he was out for two years yet but he didn't admit that he abandoned his residence i did use those words but i mean when he made it very clear did he not that when he left he had no intention had not formed any intention at the time he left that he would ever return it was only after he was there and concluded he missed his family and that they needed in that he decided to come back and he admitted all that he not yes he did but he resumed his residency and in fact after he did a time in jail he went back to mexico for a short period of time with his family and returned it was amid it again so we have a period of about five years before this most recent proceeding where he actually maintained his residency in the united states he pays taxes he works he lives with his family so we have a period of five years here where he's living in that state and it wasn't until this most recent departure that on his return he was placed on deferred inspection because they discovered that he had this prior criminal conviction so we believe the o adverse consequences of polls on this on an individual left congress has specifically specified that the statute is to be applied retroactively and there's no such determination that that that the indicates there that that when you have prolonged absence as you have to look at the equities you know what the what this man leaves in the united states which would indicate that he had really not intended to abandon his residency that his family his property castro with respect you never answered my question at least for my part i need to get an answer from you was how under twelve fifty to a two d do we have jurisdiction i know you say that there is a question but it's a question of fact is it not so my question is under that section how do we have any jurisdiction to review your claim well it's a question of due process whether the fact that the the apple b you're just going around in circles you say it's due process from fifty to eighty two d d is not one where you can flip and by claiming a constitutional or call of a legal claim this is a factual determination if it  is an issue of the discretion and the fact finding abilities of the lower court or a larger tribunals so that's not going to help you my question is how do you get around that problem issue you're saying there wasn't just of it there wasn't a sufficient finding of fact not that there weren't facts discussed but there was an insufficient amount of my question is in light of prophecy to a two d how to how do we have your six and they have applied i don't they don't apply any standard because they totally neglected to consider the fact that my client resume with a residency what is in your view the proper standards the substantial evidence standard placing the burden on the government to prove by clear and convincing evidence that my client abandoned his residency and i think we understand your argument you have a little under two minutes you want to save it for a vote yes please what quick question is the other issue is the continuing apply for relief and the courts here should have done that have a little over a minute thank you for rebuttal thank you will hear from the attorney general this time coun prosecution for the attempted murder charge of augustine hernandez where he was remaining in mexico at that time and may have that year petitioner did plead guilty for having stabbed augustine hernandez twelve to thirteen times you discretionary relief or removal notice cancellation of removal for lawful permanent residence your honour's as previously noted two forty two a to c of the immigration nationality act provides that this court is without jurisdiction over final orders ramadan yes your honor however two forty two a two d of the ion a does not act to restore jurisdiction over the matter because the titian or had not raised the next question of law or fact or a question of law or constitutional claim over either issue whether or not he abandoned his lawful permanent resident status or if he if the immigration judge abused his discretion and denied a motion to continue proceedings the supreme court heard arguments in the vendor who chano i hope i'm pronouncing it correctly  b which deals with the discretion the ability the jurisdictional ability of the courts of appeal to review discretionary decisions in that case involving a motion to continue doesn't that case well you know you have certain actions which you can testify to and so forth then you have to interpret the meaning and when you get to words representing that meaning extended trips abroad constituted a temporary but that abroad in the court has outlined extensive facts sensitive analysis on whether or not this trip abroad is temporary or not and specifically in order to determine if he had in this case petitioner or a court has had a continuous uninterrupted intention the court could look to yes property holdings or familiar relationships and this case either mexico or the united states but also his intent in leaving the united actually at least based on my research chevy's for a marriage one of our cases from nine hundred eighty six had similar factual situation the court focused on the specific circumstances the aliens departure in the subject cases and cut tavi versus ashcroft the first circuit case all involve similar factual situations that were all found to be factual despite the fact they were mixed facts questions of facts and law and that we did not have jurisdiction do you have anything that would gain say what i just indicated you know your honor wise choice honor and petitioners attempt to cloak the issue as a question of wall referencing one on one and thirteen see the immigration nationality act as without merit first petitioner misconstrues the immigration judge's decision in the matter as the immigration judge did not best that the island thirty would be filed and would be approved and that a two twelve a twelve or of its crime involving moral turpitude would be approved is there a difference for jurisdictional purposes between a motion to reopen and a motion to continue not for this case your honor as this is this is a general concept of immigration law is there a difference your honor this is just with respect to the fact that regulation are review will bias but not so if they are based on federal statute as i see it this is a case based upon a federal regulation and therefore we have jurisdiction what's wrong with that analysis your your honor what's an issue and what would be incorrect in that situation is the fact that it's not solely with respect to his discretionary denial but also considering the fact that he has been in this a ball for a crime involving moral in any regard the court found that it was permissible for the immigration judge to deny i must be getting proceedings when i went thirty was not approved at the time that the motion to continue proceedings was requested and in this case and i want thirty had not even been filed at the point that it's assumed for just a moment that we have jurisdiction in this case the court already granted many continuances over a period of two years why on the marriage to permit the petitioner to adjust his status to become a lawful permanent resident and therefore it is not an abuse of discretion for the immigration judge to know that it's speculative at best to determine that he would be able to do so  should have given my client the opportunity to perfect his i went thirty it was you know the courts have done this routinely in other cases where we sponsor seeking collateral relief to set aside convictions or to get expungement of drug possession convictions especially in the ninth circuit the cases are routinely postponed i mean how many continuances someone entitle to do what you want to that's up to the discretion of the felony a felony that matters in that case subsequently we made a modification of the conviction to bring it under the one year limit is to took it out of the aggravated felony category and w that evidence we made a motion to reconsider the matter was reopened again it wasn't a continuance in order to if you're wrong you lose well i don't believe i ever requested a none none your honor thank you for your take you just argued will be submitted for decision