erred by using the incorrect standard of review in their april two hundred one thousand decision by engaging in fact finding in the st instance because of the fact that sessions had not yet been determined at the time of the original trial in two thousand and fifteen nor in the st b i a decision in two thousand and seventeen the immigration court an agency preclude it from considering mental health in the determination other particular serious crime issue under matter of g g s wealthy i j had made findings about mental health there was a record year your client said the reason i didn't reason i left the scene was i had these fears arising from my hope from saudi arabia and when it came back to  and they decided to decide it themselves now you're telling us they erred by designing it themselves didn't you invite that well actually under the re edits the lanch and nin you fled the scene because of the issues that arose from your experiences in your memories of how police acted in saudi arabia but this nonetheless remains a serious crime even if we believe that because you left a dying person out there and never made a phone call to anybody to get help and the mental health problems that you claim didn't relate to calling for help there related to dealing with the police none of those facts are disputed so why couldn't the act on well because under goma sanchez the sessions the judge is supposed to have done fact finding specifically to the mental health here from the evidence in the record that your client's mental health was impaired and that was the reason why he didn't remain on the scene and i think they credited that they said that's fine but it remains a serious crime nonetheless because once you left the scene you should've called and said there's an injured person out there whose life might be saved if he gets medical help and that that was their find so they seem to to do a full blown circumstance specific approach and the evidence that was in the file at the time the psychological exam does not speak to how his prior persecution  saudi arabia affected him at this time it goes more into how the you know it went to the issue of persecution not to how this  affected him mentally and why he fled and one thing that i just got i'm having trouble with whether this issue was preserved though because it seems like i don't know if it was you or some other counsel but your client asked the b i a to consider to figure out this issue itself and didn't really ask the b i didn't say the b i e needs to remain because it can't do the necessary fact finding in fact said go ahead and decide this well argument just i'm not sure it really was exhausted or preserved in the way that it would have needed to be well and that's why i brought up reyes because i'm saying even if it's our air in asking because they did not do a full circumstantial specific and now listen this well they said if you take a look at i don't know where  at the final decision where they discuss sanchez assuming the st in the st paragraph st full paragraph assuming you say they say we acknowledge respondants evidence that he suffered from post traumatic stress disorder right and they go on to finish the sentence which we want which may have control which may have contributed to a panic response at the time of the incident and then they say and this was important nevertheless even accepting that his response to hitting a pedestrian at that moment in time related to these issues we remain persuaded that his crime was particularly serious and then this is the paragraph following paragraph that deals with that his response to hitting the pedestrian at that moment of course that's  injured or probably impaired we know more over and then they go into a long discussion of california law and how this could have been raised as a defense that by pleading guilty t disavowed that the fence he's provided no evidence either that is criminal defense attorney was ineffective for failing to raise the defense or that he has made any attempt to collaterally attack his conviction in california on this ground and here are the three critical words that i think are important under these circumstances we are convinced that whatever impact the respondents mental health may have had upon this commission of the crime is not sufficient to mitigate the crimes culpability or dangerousness and those circumstances which they spent almost a paragraph outlining a ones that w that this criminal attorney was ineffective the under these circumstances language is what leads me to believe that they erroneous lee applied the says yes and i i have that in my argument right now but yes i totally agree that and got my sack just at states or a number of reasons why such evidence may not be offered we rejected when the board offered it as a defense to not considering mental health yes as yet they're repeating the same thing and after repeating the same thing they say under the circumstances as i read that and i don't think it can it's ambiguous that we are convinced that whatever impact his mental health may have had upon his commission of the crime it was not opinion construed the the respondent is arguing that the record must be remain that for the consideration of the particularly serious crime issue so that the board construed her motion but that to me is not the most not the most serious problem with this case it's when i outlined in my questions to your adversary which you are trying to avoid which would you drop a little footnote to your brief  saying we're not going to answer any of her arguments because though that will mean we won't be able to argue she didn't preserve it but in reading the brief i think could you answer yes can i answer that in two parts st reading the petitioner's brief in a in context petitioner seems to be making a challenge to the board's particular serious crime determination but it's really not at all in the context of the argument that the that every man of the case of the immigration judge so on that ground we would still maintain our way of argument but to address the merits of your concerns all that's required under gomez sanchez is that the board take into account all reliable evidence of mental consider whether he raised this in his criminal proceeding to its corman's written a better brief than the one in front of us but that's not the issue for so assume that those issues are waived what do you would you do that i think even taking that aside because i did not quite sure what the board was really trying to state with that paragraph but i think even taking that aside the board's analysis still meets the requirements set forth in goma sanchez which is to take into account evidence of mental is particularly serious that would be taking that would be an irrational decision we've said in goma sanchez that there are some things you shouldn't take into account the criminal trial yet they take it into account so didn't as a matter of law not fact didn't they consider inappropriate factor they under strictly under go my sanchez i would agree with that but i think i guess the best argument here is a futility argument because the bell even up psychological evaluation that diagnosis and with depressive disorder and p t s d the board acknowledged all of that took that into account even said that that could have contributed to his panic response but nevertheless even assuming that might be true that the arabia and that's why he left the scene that's what makes this a serious crime if that if it was just that he had them it's somebody that he probably wouldn't have been prosecuted at all and i'm not sure how clear it as a as a factor misdemeanor he was sentenced to a year he served eight months and that would suggest to me that at least the state court the judge and the less serious so i don't you know there are various there are about three factors that one takes into account here but what bothers me is that there in reading the paragraph that i read i want to read it again the board is essentially taking the same position that we said you can't take in and go mess in language that's not entirely clear to me with a good knowledge they say we know this isn't evidence but let's accept the fact that they're they're taking it into account and one hand they're taking in their cap in the other hand the taking it away and they're saying no you didn't you didn't raise it you could have i think that that was wrong and and i think to some extent that aspect is problematic in light of goma sanchez but i think even taking that aside i think the decision still stands because the board is analysis still is i think sufficient under goma sanchez it took into account reliable evidence of mental health and found that it didn't mitigate the dangerousness of petitioners crime and i would just like to know two things i don't think the criminal court had any evidence of petitioners mental health before and sentencing him to the year that is the maximum for county jail and i would also know that that's only one circumstance to be considered in the particular serious crime determination but under the facts and circumstances of the crime i think even apart from that arguably problematic paragraph i still think the court can affirm the bar its particular serious crime determination because the board is analysis still consistent with what a centrist requires which is to take into account for liable evidence of mental health and i think that's what the board did here doesn't necessarily establish seriousness if there's a middle of the fence you read the cases you may not consider the criminal history i read gomez sanchez is just saying that the board must take into account if presented evidence of mental health in the particularly seri there's anything further it seems like i guess i'm having trouble figuring out your position so that response makes it seem like you're saying there isn't an error in this paragraph but earlier it's like you were saying there is in this program i think sanchez i think it would be a problem if if the board just found it not particularly serious because of the criminal background but the board didn't do that here the board so in that case i mean if the board just rejected the particular just and that was particularly serious because petitioner did not raise it that this is a defense in criminal proceedings that and that would be contrary to goma sanchez but in the government's view go sanchez is stands for the proposition that so long as the board takes into account evidence of mental health which is what i think the board did here that and despite noting other criminal history about us that the decision still can stand considering the mental health issues as far as the fact that it they discussed mental health they said we credit the notion that he white have because of his prior experiences not wanted to have to deal with police and therefore fled the scene but they say we still think it's serious because none none of the mental health evidence suggests that his prior experience prevented him from calling an ambulance or letting somebody know there was somebody who might have been saved  assistance been said i thought that's what the board said so that they considered it you can say they didn't mention consider it whether they you or your argument has to be that they shouldn't consider other things right right