may please the court my name is judith lot and i'm hearing i'm here appearing on behalf of the petitioner rod out of money grab a man of my argument this morning is that it is contradictory for one government agency to find that removal of ms my would result in extreme hardship to her while we have another agency arguing that this person has no relief from removal before i proceed with argument i'd like to address this court thought so the government and i have each done that and the only area that i can find that we have found some agreement is pursuant to the most recent two thousand five case which is to say have versus m of law to facts in this case there's a lot that the government has never conceded the factual allegations of your client and her former husband have a say have not but my argument this morning is that the sixty solves the problem that that's what makes it a mixed question of fact and law as opposed to one of disputed facts in which case we have to go with the fact issue first yes now i can see that when this petition was filed the i three three sixty into account since it was not part of the wrecker well i i believe we can and i believe that's why i know you can i think ideas like reviewing court i digress when when the petition was first filed the motion to reopen that had been denied with space and they filed i three sixty now the motion to reopen was barebones but the meat of the i three sixty application was the declaration of the petitioner when she disclosed that until august fourth two thousand and four she was virtually a prisoner to her husband she had no identification she had no financial resources and she was battered i respect that i missed a lot of my concern is you've asked us to find that we have jurisdiction i guess that based on spencer because this is a mixed question of fact or law but we don't get to that if we have a denied fact the you say your your client made the allegations at the i g hearing that all of that lead became the grob amount of the i three sixty but the i three sixty had not yet been issued as i understand it we have to stay within the record so i'm i'm concerned how we get to where you want us to get on this is that the board of immigration appeals didn't even open past the statement of the law that it didn't review the facts that were set forth in the declaration of the of money it didn't review the criminal proceedings that had been filed against the husband it didn't review the fact that the district attorney had charges pending against the husband at the time and i forgive me i don't mean to be have great empathy for your client but you've got a situation here where the order of removal the came final by my record december tenth two thousand and three she didn't file a motion to reopen until april twenty fifth two thousand and five quite some time later and and so we're stuck with this issue of the discretion of the attorney general for the attorney general that has the discretion open this up based on the analysis of spencer i'm trouble help me get past that problem how how do we have jurisdiction in this case because the facts set forth in the declaration attached to the motion to reopen that were virtually ignored set forth the reasons for the late filing and the reasons to apply the extraordinary the i'm sorry the waiver of time but isn't that where the discretion of the attorney general comes in whether you agree or don't agree with the attorney general this is a statute that seems by its wording to let the attorney general decide whether there are extraordinary circumstances well might have been correct you know that's correct but my reading of the case law that the court has asked us to present actually to point to the most recent case which which i cited earlier seems to indicate that this court has jurisdiction to review even if you really discretionary question and th review purely right right that that case right relied on ramadan and didn't deal with this particular statute that it no but if i may digress too long versus gonzales this is a case that deals are we taking the most vulnerable of society and stripping away from their people the ability to have their claims reviewed it like i'm no fan of our immigration laws or some horrendous decisions that were called upon to make that make your heart just break but we don't write the laws we're here to declare the laws and enforcement the congress decide i'd love you to tell me how we have jurisdiction and i honestly i'm not seeing it so that's what i'm hoping for is that you can shelby a way that we can be helpful to your client within the law i don't think the facts set forth in her motion to reopen were even looked at opposition to the motion which was quick it was not complimentary to me but it didn't address any of the facts that were raised by the the facts rather than just to make a blanket statement that says you have any proof that no one addressed the facts i mean i maybe not in writing but that they didn't consider them well when in the in the rea morning that has the court the name of god or heaven south on behalf of the respondent to general move the microphone up a little bit better that's better thank you there are two sets of undisputed facts upon me disputed facts in this case the first are the historical facts relating to the alleged abuse the second is the perhaps even more important linkage to the delay in filing a motion to reopen so even if we were to accept as truth the historical facts of the abuse we use are still left with the dispute as to whether that abused called the late filing to the board of immigration appeals are interested in your use of the word if the department of homeland security has is that right they have granted the petition granted the petition which which means they've approved the petition correct correct and as we sit here today what's the status of the husband the husband of the united states citizen so he withdrew that petition and she self petitioned as a battered spouse so that's procedural history her option now with a final order of removal and she actually applied to adjust status based on the south petition that application was rejected because jurisdiction lies with the executive office for immigration review which is part of the department of justice once a final order of removal is in place so her option now is to return to fiji use the approved visa petition and apply for the embassy there for an immigrant visa to the united states meanwhile are husbands who committed the battery used here so you can now see the united states that is and has been all along there's really nothing that that's really neither here or there why wouldn't the government be willing to mediate this case why put this woman through the process you just described after all she's been for because the issue presented to this court of the jurisdiction and the government maintains it understand that i happens all the time when i have people who have approved i one thirty s or other petitions and we occasionally ask the parties to mediate in the least in the last year or so d h you know seem to be more willing to do that yet at the candidate and they're asking them to connect the dots the candid answer is that in this case citizenship immigration services through the valar violence the i three sixty which was not part of the record right that there is no evidence that the battery caused the delay in filing is that correct that i understand nothing presented to the board to show that linkage is there a requirement under the regulations or the law that that must be the case in other words that she has the burden to show that it was the battery that caused the delay in file share because the the term extraordinary circumstances in compassed is the idea is that that the historical three sixty here because i meant as you've indicated to judge hawkins has accepted that fact least part of it the h s has done that that she believes constitutes a mixed question of fact in law and that we can have jurisdiction you have found to be true is there a yes and stated otherwise they intend were supposed to say that's ok you're supposed to say you don't have jurisdiction over the question and i ask you there  i'm not aware of any ninth circuit case that falls under the disputed facts therefore no jurisdiction to review the discretionary but this case is in my opinion that case the circle factor disputed the motion was opposed by immigration will give you a minute i was unable to make this point earlier about make it quickly now that one of the requirements that one must prove in order to have an i three sixty partizan approved will result in extreme hardship to the person so what we're what we're seeing here is that on one hand we found that removal to money will cause extreme hardship on the other hand the government is asking that and which would result obviously in her removal quickly i want to point to page twenty eight in the record which clearly shows that this husband never been ryan was a legal permanent resident at the time that he married and petitioned for this money he has become a us citizen subsequently and i'm quite shocked honestly page thirty of the administrative records shows the filing of the district attorney so this is not only  j disputing the facts as set forth by mani but also somehow claiming that the district attorney has filed some kind of fraudulent titian against the husband i don't my position remains that the facts of this case when i reviewed michael steinberg looked because just argue will await further order of the court you can anticipate this boy will send out an order requesting supplemental briefing on the cases that judge noonan mentioned thank you both for coming in today