important to recognize the legislative history behind that and what actually brought us to full circle to recognize and the ability to have a country's government to impose population controls i think that the facts of our case are somewhat unique maybe this is one of those cases where if the court were to resolve it in a manner favorable to  of it's going to be the very fact specific case it's a situation where you have someone nearly ten years ago being placed in what we refer to those in the immigration bar and the agency typically would refer to as exclusion proceedings someone who arrives at the airport and is stopped at the inspection process and because their documents are not in order or simply because they don't have the pro you fail to show up when you start having children you can stay in the country well i would imagine that we need to look at the case in the context both with the rules the parameters that are set forth by the don't have to go specially back and grief anything else in front of the board of immigration appeals this case is if i may for a moment it's indeed handled exclusively via the district director because the myopic nature of the regulation that provides for the adjustment of status meaning in short if you're an exclusion you never typically ninety nine percent of the time you will never go in front of the judge for your application for adjustment you're going to go directly to the district director for the charging document that was fashioned back in one nine hundred ninety five until the change april first thank you ninety seven with the illegal immigration reform an under a cat claim under the article three of the geneva convention and we now show that he could sustain some form of punishment in china in which i think that if we were and a half if you want to reserve any time for i'm going to conclude this conclude with the following i think that i think at times when you bring cases such as these there are difficult cases to grapple with you know we're we're the immigration service take it on and look at the squeeze on you are you'll be relegated to an order of exclusion deportation and may continue to be in limbo for an indefinite period of time thinking i think we need to do good morning alice and i go representing the attorney general i disagree with my colleague and what is before this court the only issue before this court is whether the immigration judge's decision and the boy's promise of that decision grant asylum within it and that's a decision within his discretion so that second part the court cannot decide and that's an issue that even if this court decides that there's evidence compelling a different conclusion then you would have to send it back for the discretionary third chance and he didn't show up for either one of those and he now stands in front of this court and he's asking this court to overlook the requirements for silence and sort of give all we can and i say that so that he can get back in front of the immigration judge and apply for adjustment status but when you look at this record and what is before this court this court can't send this case back the only issue here is whether he proved a fear of future persecution there's no issue of past persecution that that based on his you know on his having two children and what is absent from this record and i believe from the case law in total is that there was any support either in in the law or in in witness what was very interesting about that woman's testimony was how she on her resume how her children were treated when she went back she claimed that children who were born here are not treated the same as chinese children  that the chinese government has a different way of dealing with foreign born children and children are citizens of china they pay much higher price to go to school his wife will not be able to work and that's how they  prevent that's how they deal with foreign born children that is very different than sterilizing the parent of foreign born child and to prevent them from having any more children and on this record there is absolutely nothing in this record if this man based own having two children here which placed that threat and in fact he's taught himself knowing that his wife was pregnant with the second child he thought documents it was after that get him back into the court and i would suggest to this court that that is not that is really unfair to two people who have true asylum claims and who come before this court and are really threatened there would have to be a legislative fix for people like that but you know technically the agency could probably move him to another country if they could accept if they could find a country that would accept him but that's fairly unlikely so as i said earlier he's basically but the only question before this court is if on this record he proves if there's a real threat of persecution based on you know the fact that there was no past persecution and this to want situation at first he there was some movement about you know in the issue about this was relating to mr want first claim that he feared persecution and admitted that his wife would not be subject to sterilization because she is a united states citizen but he then changed the theory i think sort of evolved frankly and he asked permission to bring in an expert witness to prove that she would be treated as a citizen of china and although he was given the opportunity he did not bring in any way although the witness he did bring in talked about discrimination against united states are questions of economics i mean this court has recognized that that type of discrimination doesn't rise to the level of persecution even his witness she returned with her few children to china and although the only thing that she was able to say was she was opposed to paying much higher fees and that happens state to state you know when you would you want to opportunity to first of all take a look at this quote case that was decided well i know the case that you're talking about i'm unfortunately i did not have the opportunity and i would like it also maybe to check with the agency to see what they would like missed withhold submissions i think you would be interested in having us withhold submission of the case until you will be the first mission on that of the time being zero three seven one seven six zero versus ashcroft is submitted on the briefs next case to be argued it is zero three seven two two three three cower