initially i would like to note that the jurisdictional landscape has changed with the enactment of the real act as filled in the recent decision of this court in fernandez order including decisions involving cancellation of removal under section two forty eight of the ironing i believe that this means that the previous law in this area which restrict jurisdiction even over legal questions where there was a discretionary determination of hardship has been eliminated in the jurisdiction has been restored to this court insofar as it us with the legal issues relating to a hardship determination as well as the due process claim grieved in this case this appeal involves a question of law and that is under international law that under article three of the convention on the rights of trial it has been construed and hill to constitute customary international law and that convention provides that in all actions concerning children the best interests of the child should be a primary consideration the immigration judge in this case explicitly refused to apply international law in citing the factors international borders i believe that the immigration laws contemplate that the separation can occur but i also believe that the article three which deals with the  separation can happen what what our position is that the judge in weighing the factors of the various factors that he goes through should have considered the best interest of the child is the primary consideration in accordance with article three and that's not to say that children can not under the eye and maybe stop aerated from their parents through deportation rather i'm harking about the calculation that the weight that should be given to different factors and the fear of the immigration statutory element is that there must be exceptional and extremely unusual hardship and i believe in and weighing the relevant factors that the best interest of the child should be given the primary consideration that balancing of the factors to determine whether there's a perception off an extremely unusual hardship such as in this case we have a situation where we have two children now eight and ten united states citizens  guidance and we believe that the best interests of children there should be a factor in determining the exceptional the screamingly unusual hardship standard and as the as we believe international law provi that factor should be given primary consideration so what we're really asking is for this case to be remained so that the judge can give that factor the primary consideration and i believe that is not inconsistent with the immigration and nationality act for cancellation of removal as this court held in all the verses age craft an act of congress ought never be construed to violate the laws of nations the law of nations if any other well the position your honor is that when the immigration judge is fallacy in factors to decide if that level of hardship has been reached that in balancing those factors that you should be giving some extra weight to the best interest of the child since international law are we believe provides that must be the primary consideration so i want to graft it on there i would just say that in the balancing of the factors that international law dictates that a certain factor gets to more weight and that the judge should honor that is an interesting argument deportation what we're seeing is that when the judge does his analysis and balances all the different factors that you should be given a greater wheat to the best interest of the child than the other factors and it still might result and we believe that this case involves issues which are not controlled by existing president and which also would affect a number of people and are therefore substantial and that under the relevant regulation of the streamlining was improper so we would ask this court to also remain and because there was improper application of streamlining in this case under four one zero zero three point  the children definitely as a factor but not as the primary consideration and balancing all the factors and i believe that's the key thing that we're asking is for this court to read the statu but that the judge and wayne things in calculating should give that a little extra weight and should recognize that as a duty under international in fact in fact makes clear tries to establish that discretionary determinations are not subject to the court's jurisdiction i would say the real i d act certainly did not change that for purposes of cancellation of rouble but even assuming that this court does have jurisdiction in this case petitioners international law argument fails on two separate grounds and the first being the one that you previously pointed out judge graver which is that the harsher determination is not being a fly contrary to international law the convention on the rights of the child that article nine sections three and four specifically contemplates the possibility that a parent will in fact be  and separated from the child and as long as that's done according to the judicial process of the nation state as a sovereign state involved there's no problem with that under the convention of the rights of the child under of the rights of the child  establish petitioners eligibility to remain here so obviously those hardship to the children is a parallel if not seen consideration for practical purposes as what's in the best interest congress could have said hey by the way we also are going to be bound by the convention the rights of the child which it hasn't and we can apply it let's apply that in cancellation cases congress certainly could have done that and indeed torture convention regulations  by congress and the teacher can ask this court to rewrite the statute so that it fits the outcome that that he would like that's not the way it works in the institution and congress i really congress didn't have to do that and certainly the immigration judge in this case wasn't bound by that w they seem to be doing well in school he accepted the petitioner loves his children and wanted to provide hamfest he noted the father's petitioner's employment opportunities in mexico mexico and in fact the children were going to remain here with their mother who did not have status until such you know until such a time as she could not remain here either but the plan at the time of the hearing was that the children are going to stay in the united states enjoy all of the their mother or their mother sister initially they were going to stay with their mother if such the time came where the mother could no longer remain here because she was ultimately legal then the children were going to go  with the aunt who had status and again it's axiomatic in immigration law and has been for years that having a child in the united states does not have you you with any rights that are not particularly created by congress petitioners argument though he tries to skirt it i would say is basically that if you come here and have a child you should be allowed to stay because that's in the best interest of the child and there are children get citizenship but the parents don't get any particular rice the congress doesn't otherwise allow for them such as cancellation of a move will simply by virtue of coming here and having a child  language here has to be interpreted to require some extra grade for the visited on the best interest of the child to be considered explicitly it seems like the that if you did find that somehow that it was finding there's nothing to say again as judge draper pointed out before there's nothing to say that it's not being done in a manner that consistent with the entire convention he can't pick out be hardships of the child it says that it's a primary concern not that it's the only part of the best interest of the child's the convention doesn't say that it has to be the only consideration but just that it's a primary situation and in this case where the about the children in their formative years and you know their education yes but everybody else right and the factors with the father of the factors leading to the father concerned the children for example you know his i'm fortunately the emotional problems that these children are going to face are fairly standard and they are a result of their father's decision to have to cancel your illegally and reside here for years and years and have children under th i would just like you emphasize that our position is not to replace the standard that is of course in the cancellation of remove the statute but simply to have a ruling that the immigration judge must be in the balancing of factors make the best interest of the children the primary consideration and your although the immigration judge did consider some hardships to the children there wasn't a clear indication that he would consider the best interest as the primary factor and in fact i believe he expressly rejected that consideration in his opinion so we're not trying to