numerous legal ever as the the government claims that petitioners trying to dress up an abuse of discretion claim as a question of law quite to the contrary here the board is trying to dress up their legal errors as a because in palmer the the i j a the immigration judge actually did not find that the respondent was rehabilitated and in fact when the the b r d a was talking about how the i j a rather than making a finding of rehabilitation he said your conduct justifies denial of your application for cancellation or move on and the only reason i'm granting you cancellation is because of the extreme equities involved very positive factors yes there are well the i j did not use the particular word rehabilitated but it is very clear from everything that was stated in the oral decision that he did in fact find the response now  be rehabilitated especially when he credited he said he was a completely credible witness and he believed his testimony and he testified that he had changed himself to his religious dedication to his and the job of christian and through his faith in god that he had changed himself and the judge credited that testimony and that is why in the final in a close i was the id's opinion the over the needs to a conclusion that there's very little likelihood of this person returning that was the sodomy case where the the the immigrant had been charged with sodomy but had not been convicted and in trial before the i j a they claimed they were innocent the i j a made no factual finding cancellation the guy says yes you know this sodomy offense was very serious and we also don't think he's shown sufficient rehabilitation to merit this as an exercise of discretion it could be for the second circuit second circuit says yeah you claim that this was just this decision this reversal of j was just a result of your discretionary re weighing of the positive or negative equities but in fact you engaged in an appellate fact finding  from engaging in appellate fact fired and your honors there's a reason for that there's because nothing can take the place of actually seeing the alien and witnesses up close and observing them in person their facial expressions the nuances of what they are communicating and after all your honors that isn't that also what underlies the whole idea of having oral argument i know that's a panel i thought this one was one who talking about second circuit cases is actually closer to the noble where the i j a made a finding that i think was clearer them than the one here the r j in that case said i mean lot of the foregoing analysis the co concludes that mobil has finally demonstrated good efforts at rehabilitation nevertheless the second circuit said you have with the v a was just balancing rebalancing the equities they were you know overturning that factual finding can talk about noble for a little bit absolutely i think the argument is that mobile is also distinguishable because ennoble the vi the i did what it was supposed to do which was that it looked at rehabilitation it accepted the factual finding of rehabilitation and then weighed that against the other negative factors in the case that's what the board should have done in this case with the board claim it did in this case but is not with the board actually did and the truth is shown by the language is it really different well looking at the second circuit decision your honor it they did say that they way they did consider rehabilitation they were doubting the authenticity of the  rehabilitation evidence also if you look at the particular facts of the noble case the respondent had the alien had continued to commit offenses even up until shortly before the the date of trial i think also noble could be limited to the very particular set of facts of an alien who had just kept the recidivism it just keeps going out and committing the same offenses even after he's been put into removal proceedings and yeah i actually agree with you that the language from our in our case t isn't that you were about to quote or started quoting is the most troublesome part that makes this a close case but when i look at it from back to where judgement started when i looked at the immigration judges opinion he had the structure of the opinion begins with findings of fact and there's like three three and a half pages of findings of fact in there were in there there's he's saying i find rehabilitation and many and then he switches from those factual findings to his what he calls his discretionary analysis this is beginning at the bottom page five and over on two pages six and seven and that's where in the discretionary analysis he talks he there's all this good language suggesting the possibility of rehabilitation so i guess i'm back to where reasonably infer that he found the petitioner to have been rehabilitated especially at the very anger he said that the court is optimistic and believes that mr land story is going to make positive contributions to society and therefore we opinion the main message is i think this is really close in difficult case i think you'd agree that two or more people can look at the exact same set of circumstances even facts to enjoy a different conclusion so he's bringing up that there can be a distinction between the actual thing and its objective reality and the representation or the understanding of the thing in metaphysics so what' to the painting so when it comes is there are certain things where there's an overlap between those two things for example rehabilitation is is rehabilitate rehabilitation kind of melts into belief and i couldn't i don't think it's certain things cannot be separated from the beliefs of selves when especially with rehabilitation with dealing with things such as for example drug addiction or other types of  addiction when when is a person rehabilitated you know ever per person who deals with addiction i have to struggle with that every single day and it's a it's a mental state and it also requires a certain level of belief and a belief in that person so i think that when it comes to  the agency denied relief as a matter of discretion so the discretionary determination things that the the judgment about the military positive things and said that then said that the adverse factors of his serious and extensive criminal history did given them it is our judgment that discretion and he's in the he that landed ten years and he said there's no statistical difference but he also said that in any individual case the likelihood of that of the person being friending would never be the same as someone who  act listening to a writer had to say about about the study and evidence of rehabilitation i think that would lend itself even more towards the argument that this is evidence going towards rehabilitation that's evaluated as a matter of discretion and not a bar a ticket a box that you meet that then boom you've established rehabilitation but it's evidence going towards rehabilitation that the agency is considering when they are conducting their discretionary analysis  that showing and here i think what they were saying was as we're weighing the positive and negative factors and if we look at the context in which this arises the agency has to weigh the positive and negative factors in determining whether or not to exercise discretion and in their published decisions and set to twelve see case there it was listed out the factors that have been deemed relevant to those considerations and then in the subsequent published decision of c v t the board he said those factors are also relevant to our discretionary analysis in the cancelation context it's clearly both of those published cases when they talk about it in that particular case a criminal record is present normally evidence of genuine rehabilitation would need to be submitted to be balance but they're clearly both those cases that it's still a case by case determination it's not a burden of proof eligibility issue but a matter of the type of evidence that the agency is was numerous it was recent it was serious they adopted the immigration judges i mean it's in that respect they also adopted the immigration judge's findings that the circumstances of the crime were very well why some and troubling in this case we have an individual who was convicted of selling drugs on the street in possession of an illegal do you think firearm involved in the burglary of a home in which a juvenile had pretty sure he's not that would make the scale here so we would put me in prison for committing three murders he did the right thing belong to be in prison the person you're talking to right now is not the same guy and he may have been from the truth may not in time but you who knows but we're trying to has has had a religious experience and so on and those are subjective and they're hard to evaluate so are they looking for more objectively evidence of rehabilitation i can i can just look at the other cases that we have before the court the m published cases from the circuit and the published cases from your set sister circuits and it appears that the evidence that the agency had considered in those cases were similar to hear expressions of remorse but also other contributions to society we have here the immigration judge recognizing the expressions of remorse and regret which the board did not dispute and also indicating that there wasn't really yet a great deal in the record in terms of scale like not as a hurdle you have to overcome but as a weighing of the evidence what when you have a serious criminal history in the circumstances a serious how much evidence did they need to tip the scale and for the judge it went one way and the board that went the other way but that just reflects the fact that it's a weighing of the evidence in a discretionary determination and the government would urge the court to follow the decisions of the sister circuits that have dressed addressed analogous circumstances in noble  family members and community members testify that they believed that the applicant had changed his life allowed but it but it wasn't enough for the board and it was the government what the board was was tasked with doing which was deciding whether or not the discretionary grant was appropriate it's in that context and that's the language the second circuit uses in wallace which was actually a less strong case than this case because  wallace i believe the immigration judge actually had found genuine rehabilitation and the board disagreed and said it was not adequate evidence and we both station and the second circuit in that case still declined to exert jurisdiction found that that presented  a challenge to the agency's discretionary determination and additionally that it did not present a question of interest of fact finding when the board looks at the facts of the case and weighs the facts of the case that's not the same thing as fact finding work at least that's what the second circuit concluded and we would urge the court to conclude similarly in this case and then just to get back to the question that you asked mike my co counsel here i do believe that this is a little bit of a straw man argument where the immigration judge in this case didn't actually find i'm like for example in wallace where the immigration required to find rehabilitation or lack there of evidence going to point to rehabilitation is one thing that has been deemed a relevant factor in their discretionary determination but unlike other areas perhaps the burden of proof  contacts this isn't something that the agency was required to find or not find it was evidence they were required to weigh and given all indications they did they just merely disagreed with where the scales tipped in this case so we would  urge the court to find that this was not in on the spot fact finding the agency the board stated the correct standard it applied the quite standard we see the board referring back numerous times to the immigration judge facts here some of which indicate a very serious criminal history and we would urge the court to find similarly to the second circuit did wallace and noble that this is not you can this fact finding and decline may please the court counsel discussed c v t and matter of marion both requiring evidence of genuine rehabilitation and the board in this case found that the record contained no evidence of genuine rehabilitation this is clearly not the case rist the petitioner submitted a lot of evidence we want to note that we have today with us in the courtroom and that in with us this morning as well as numerous members of the petitioners religious congregation or also here they came out to support him that by itself says something that by itself it is our judgment that discretion cannot be exercised in his favor absent powerful evidence that he has no propensity to re offend this record does not contain such evidence in other words they found no evidence that that he has no jarvis who he's not he's a bishop and he came and he testified on behalf of mr landis toy and the judge said this met this man this pastor came and he laid his allow him to be released and although he didn't use the word rehabilitated that scene is very clear what he believes the difference between a belief and a facts now if the judge if the judge believes that the fact it's essentially a fact our system allows our that it's very difficult for people immigration posture remove machines to find good counsel have you been saying that you're right that we do this we haven't talked about the case you may well lose this but thank you very good but i want to thank you for