our final case for today is mendoza so lease against attorney general sessions role as his decision was already made well i don't know i mean he's he expresses impatience with the fact that there's been a rematch and but he says but we're going to have to do it all over again in june and then they do it and he you can't really say the due process is violated every time the judge makes some kind of testy remark that's correct or i hope not anyway that's correct your honor but in this case the reason that the case was appeals was because the testimony of mr mendoza's mother was not given and so and the judge fixed that the judge found a date that she would be in the country finds the time she's there and gauges with her what's the problem that structure on her again and this case once the case was remanded before the petition of mother testifies and the transcript there's a few parts of the transcript the show that the judge had already made his decision before the mother testified i fear relying on the part where the judge wants statements about voluntary departure it just seems to me that that's just part of the record the judge needs to make and there's no rigid marching order of issues in this is if we get there i'd like to hear your position on this besides that point your honor there's also other parts in the transcript specifically the immigration judge asked petitioners counsel what his position was on the case and stated you appealed last time it's the same identical fact this was before the petitions mother to fight a bit later the immigration judge asked the government's attorney whether she would like to take a position on the case again this is before the petitions mother testified even immigration judge himself stated he was going to stick his petition is position so you can but that it's actually the first thing you mention as a matter of fact correct that other than adding the mother's testimony this remained did not produce a lot of new testimony from earlier evidence or documentation or other material from mr mendoza so lease subjectively true that it was basically the same record the judge was being asked to look at again now going to be as supplemented by the mother that's just a fact is that in my opinion that's because the immigration judge took over the line of questioning well when did mr mendoza so leaser he was represented right so i mean you have to tell the judge if you want either time to gather evidence or you want the government attorney didn't ask any questions similarly one up to his mother was questioned the government attorney did not ask any questions either it was the immigration judge asking all the questions he took over the role of the government turn but you know you can't have it both ways because it's some point in the immigration statute and regulations this is not your classic district court action where a full adversary system operates immigration judge has an independent responsibility to make sure the record gets properly developed and that may entail asking questions so less or something wrong with one or more of the questions you haven't told us about any question that was particularly off base or offensive or you know inappropriate somehow why why does the count of questions matter because the immigration judge took over the entire line of questioning the government attorney didn't have to make any argument whatsoever immigration judge for bid the government and attorney from doing so not know so and didn't forbid mistreatment o the silly says attorney from doing so just the judge had a lot of questions unless the judge said ok we're done you constitutes reversible error i think you need to look at the context there have been cases where it's it's not just a count of the questions but it's what's being said if the judge is being tendentious if the inappropriate specifically no it was just overall in the context of the case but it's not uncommon for i j to make in korea you just saying that the number of questions you made precluded examination by others no your honor my argument is that the context as a whole that shows the immigration judge frustrated with but this case specifically combined with the fact that the immigration judge took over the entire line of questioning plus the government turning not having to make any argument whatsoever or question the petitioner or his mother well if the government made its case  conclude the immigration in my opinion emigration judge did not afford the petitioner a fair and full trial for a neutral immigration judge a decision was made before all the facts were considered and the immigration judge acted in the shoes of government counsel respectfully the court lacks jurisdiction over the agency's discretion or determination that he failed to show the requisite hardship or cancellation of removal and the record does not support the questioner's contention that is perceived as what legally insufficient now would you agree though i mean i think what he's trying to say is that if the jet if the immigration judge really just turns into counsel for the good for the government then we don't have a proper administrative procedure the judge although entitled to develop the record is supposed to be a neutral party and so the judge can't just put on a calf is ice sir you know department of homeland security or whatever well the statute does require the immigration judge to in the facts but you'd agree as embeds the abstract principle even if it didn't happen here that if we were to see a case where the immigration judge basically was d h as counsel that would be neat there was there would need to be a new hearing   magine there would be situations i think the immigration judges questioning would have to to be to that conclusion would have to show some sort of bias or some sort of animists or some sort of prejudging of the case that's definitely not the case here and petitioners counsel points to nothing in the record that would suggest that that's the case here just had a full opportunity develop the record present any evidence that he wanted to and the immigration judge and each night process questioning both mr mendoza and his mother when she came up to testify as i said the the immigration judge shall question the witnesses that's what happened here petitioner shows nothing that was inappropriate and that in fact concedes there was nothing that was inappropriate here other than other than the i chase comment that he's he's definitely not a happy camper that this case has returned to his desk there were two comments like that when they were scheduling and one when they came back and i think that's understandable i don't know if it's advisable but but certainly i don't think there's any evidence here that that affected the immigration judge's decision in fact the only tangible evidence that he points to to say that it did affect the immigration judge's decision is the first will the taking the steps to wrap up the hearing at the conclusion of this testimony and you see when you look at the record well first of all the immigration judge specifically set the hearing for a day when this commandos as mother could testify but she would be back from mexico and able to justify if you want to call her counsel said at the end of mr mendoza's testimony that he had nothing further and the immigration judge went in to qualify for voluntary departure and asking for some rays of the arguments and when mr mendoza's counsel reminded the immigration judge we have the mother here wants to testify immigration judge simply said ok and the mother came up and testified went through full questioning and even after she left the stand or however it it function we don't see from the transcript that the immigration judge called her back and asked her to clarify portions of her testimony that were relevant to the hardship determination showing consideration of what she what she was saying and beyond that the immigration judge expressly stated that he made his decision after careful consideration of the record in its entirety now that's easy to say of course right evidently i would say that that is but the immigration judge also followed that up with consideration of the mother's testimony in the decision both in the statement of facts and in the hardship analysis now it's important to note here i think that that mr and others mr mendoza's mother's testimony did not go to the continuous physical presence requirement and it did not go to good moral character is just a hardship she's talking about how much time she's living with the grandson and how much time with the various other people that's exactly right she didn't give us anything on the other two factors and in any event the board weigh in afterwards and looked at this issue to know the issue of hardship and said no under the novo review this petitioner did not establish exceptional extremely unusual hardship to a qualifying relative his mother and that should really dispose of the matter here their claim on fundamental fairness and  process which of course you have no due process right to discretionary relief from removal in this court has found this to fall sort of under a legal question as to whether the regulatory provisions were provided for well we encourage people to look at the regulatory provisions which are actually quite detailed in terms of the process to which someone's in title because if you follow the regulations you probably i mean i would say you never would need to think of the fifth amendment that it would be unusual but even   first part i want to make was that the council's appeal to the board of immigration was focused on how the decision was made not what the decision was the appeal was for due process it was not for the substance for the substance of the matter and the second point i would like to make was in this court and rodriguez scully said begins as the court analyzed the frequency and the length of the immigration judges interruptions in order to determine whether the immigration judge went beyond clarification of the applicant's testimony or was merely pointing the applicant in the right direction in this case i believe that the immigration judge went beyond clarification