respectfully would say no then and here's why the state of the case law in the a circuit is mixed at the moment and effective we are very glad for the opportunity to argue this because there is case law that clearly states that this claim is reviewable and there are some much more analytical perhaps but there is a recent case that we cited in a real twenty a j letter c a versus holder in a sense there are the following cases all stand for the proposition of jurisdiction and a two thousand and fourteen case it's very instructive seven forty four f thirty five seventy seven even go gomez pairs versus holder which the government itself cites in its own brief on page thirteen stands for the proposition statute has as a predicate initial determination of whether a person meets exceptional extremely unusual hardship that is a legal standard the court in zia held a to be a legal standard so one of the things that this court has said in many cases is that this issue legal about other than the determination in a particular case whether to exist because the determination of hardship is a standard of law you have to prove hardship in order to meet the qualification for cancellation and then only mean it wouldn't be a jury issue in a civil case civil tort case the facts that underlie the hardship decision determined by the trier of fact would be a jury decision whether those decide whether that's extreme hardship that's not a find the real i d act there are two ways your honor respectfully that it is not number one if you're just talking about application of law to fact what you have is a situation where the trier effect calls the facts and there they are in the record there and now assess their application is part of the legal standard of hardship so so negligence should never get to hear the jury should get it should get a special i am asking the court to exercise its power of review of of a removal order which it has a dirty wrong with this one well in addition to the application of a lot of the facts you also have the circumstances of whether the judge has properly developed the record in mexico as it would relate to the two us citizen children ages two and six that was not discussed immediately resonating now you're saying we had picked the opinion if you don't if you don't review everything and you know we've got we've got countless regimes specifically upheld and i know mr no government counsel was the attorney for in that case but the in the zia case the government one on one so we the issue of challenging the discretionary component there to a that their worst sufficient questions of law in fact brought up let me ask you this back to the narco violence that you were discussing you know even if we thought that that wasn't adequately addressed in the  application there's a mix question of law in fact but when it comes to whether a factory is considered meaningfully at all that's a due process that's a question of law if the law says a matter of  for a supreme court case that says that particular flaw in an agency decision is as a constitutional heir the lopez case talks but the person in the locus is role for the president in the area of cancellation  it's a constitutional violation for the district court not to consider something in its opinion that was that was there interactive or the sentencing case near the same court says you've got to you've got to look at everything and make in the term in a substantive reasonable you know this this is just isn't the way our process works we don't require perfection the agency says consider everything we assume j did that did not consider what wasn't specifically mentioned worthy of that's not a constitutional issue your honor i appreciate your skepticism the case obviously i don't know but here's the here's the thing prove exceptional extremely unusual hardship that's a legal platform one says it's reached the court are they be i can decide discretion but if you say they deal in you have the burden of proof but your voluminous evidence of hardship in mexico of drug violence of the fact that your sister was robbed of the fact that your family is going to be now nine people in a two room dirt shack the fact that you need them more than a primary education these things are incredibly relevant and just to just assume that the i g did its job is away it specifically allowed you to review questions of law and constitutional questions which include according to most recent precedent the predicate legal question whether the i j a properly applied the law to the facts the relief is discretionary there are some things within this determination that are legal and there are some that are discretionary and until the court properly defines what the boundaries of this review are we're going to have cases like this all the time i've had many cases in the last few years of cancellation and a lot of them are getting dismissed for lack of jurisdiction some go on to get in the large order for this one is the first argument had a cancellation quite a while and there was another one settles with the way north panels are coming down with different things you might refer to your honor respectfully as we threw away some language over here but in c it's much more than that and they really are to court to examine this perhaps clarity is certainly welcome in this area of law but we would feel that in order to really review whether the agency is doing its job when a person could be suffering death murder robbery hardship conditions are protected by the ira if the court doesn't review these cases the government can have any kind of process it wants and if that's fifty two to be preclude the court from exercising jurisdiction over the station having a chance to be guarding exceptional and extremely unusual hardship to qualifying relatives should an alien be removed from the united states to their native country our country every  the government over the hardship determination and so why did why did he why did zia say a month ago that you know there were claims there that while the agency had sweig discretion to determine the hardship and that is the aliens burden and seeking this very unusual form of relief i have a question for you on a different issue and the transcript there is a discussion that appears to be in and at the hearing the transcript of the hearing after the at the end of what looks like after the conclusion of the hearing there's a link to discussion among the the judge the immigration judge and the government's more you're making what it's it appears to be ex parte it appears to discuss the merits of the case  some fairly disparaging comments about the photographs and the and the living conditions do you have any concern that there is some violation of due process in the sense of need the right to a fair hearing when there's an ex parte discussion in the know i don't care how poor they are they ought to go by two gallons of white paint and paint this house and the petitioners water's not there we just don't worry about th yeah i'm not sure i don't think it's raised and they didn't know that decision that the immigration judge correctly applied the standard and reached a determination that exceptional extremely unusual hardship was not proof the board did acknowledge that there were certainly hardship and there almost always are hardships but the standard to marry and in this case the board correctly case have had to do to bring the case more into the world of zero versus the world where you're saying we have no jurisdiction to review it what what would be different to give us jurisdiction to review this issue the ninth circuit has said that if the once the court finds that the legal standard has been met then it doesn't have jurisdiction to weigh the facts and of course that is why it is being asked of the court in this case to read way the facts that the the accusation is  condition of mexico family way back to that said it's irrelevant whether my children get any kind of an education that give us jurisdiction well that but does that turn it into a question of law or if the guy jay said i don't care how much violence there is in the world mexico his family can go and live in a city where you know made some other  no with regard to jurisdiction z is holding in dicta and zia itself provides your owners the exact scenario you're asking for in zia they noted that there were questions that were revealed one questions that were not and the question that not was the denial in discretion by the petitioner in this case where there is no discretionary delphic to be i e it for the out of the appendix notes they'd declined to decide all other issues of law they limited solely to whether they met the standard it's not a discretionary denial that's what separates this case from the bulk of the negative jurisprudence also high standard your honor judge loken yes it is america's decision this is what's  additional rationale given therefore this notion of invidious or some racial element would be completely novel there's nothing in the immigration more of the review of prior immigration cases which would indicate that  and just for the sake of correcting the record in addressing your concerns just brain just looking to about the ex parte communication and you may continue this past my time in it some explanation we do not have the case below another attorney had it the colloquy that is in the transcript which appears to be between the judge and the other returned the government attorney of course it's troubled us greatly but the previous attorney investigated that and apparently that the prejudice the the petitioner what they responded below due to x party with lawyers however i think this court can consider and it's not waived in the sense of how the judge applied the law to the facts so we're hamstrung by the previous writing but i think that it is still a relevant fact the courts and third i wanted to make sure that the court was aware that it wasn't the government i appreciate clarification thank you