meaningful analysis of the immigration judges failure to consider his positive equities in denying his application for adjustment of status as a matter of discretion the immigration judge and the board of immigration appeals discretionary determination was based on a flawed legal conclusion and remain is required for further consideration of petitioners children who are residing in the us this is a legal conclusion i mean they went through the equitable factors and talked about your client s employment history as a positive factor and then it referred to his various arrests and his lack of respect for the laws in the united states as negative factors and said i don't know enough about the matter at the exact moment of whether a undocumented child can be considered to determine in the discretionary mix of whether to give an immigrant a green card or not a b i a seem to put that to the side and i think our law is that we consider the agency's cision but if the b i a decides to ignore a factor then are we to look at the footnote so why should we consider that because the original finder of fact is the immigration judge that this court should order the immigration judge to just make an initial determination can in on documented child be utilized in determining whether to grant an immigrant a green card or not that is the question of law which is not a question of fact it's i'm not before this court and saying that the immigration judge should have given greater weight to an undocumented child because that is a discretionary question in spite finding that the petitioner was statutory eligible for adjustment status based on approved i won forty petition the immigration judge and b i only considered the petitioners arrest and find he did not want a favorable exercise of discretion the exercise of discretion does not mean the decision can be arbitrary inconsistent or dependent exclusively on an applicant's criminal record the immigration judge and the board of immigration appeals fail to consider all the petitioners positive equities one of the other positive equities besides his employment history his length of ties in the united states your honor he's been here for over thirty five years and mentioned that and he did mention that every honor that the main question before this court is the question of law whether a an immigrant who is seeking his green card before an immigration judge who has an undocumented child can utilize that undocumented child as a positive factor or it in no way could be considered by a judge of his adult children as a fact that right close your honor we describe an era law because the immigration judge said that children aren't document therefore i can't even consider them in my analysis and what weight which is really discretionary issue should be given to an undocumented child is for the immigration judge to decide however they must be considered in that determination and do you also locate error on the  of immigration judges broad discretionary terminations to consider every factor and second of all the b i a failed to answer the initial question that this court is left to answer whether an undocumented child can be used as a discretionary factor in determining whether an immigrant get a green card i think that the b i committed an error when they basically conclusion really said that shelter on documented but even if we did count them and we're not saying what we were going to give them we're not saying what wait whether we were given the same weight as if they had a green card or if they were u s citizens or if they had darko we're not going to get into all that we're just going to put it in a footnote and we're going to say even if we consider that we don't know what way they're going to get their spawn that would have got a green card w on to that solution they can decide not to rely on particular findings by the immigration judge your correction on it but the be i also must add to the b i also must answer the question of law matter as a matter of matters as a matter but it doesn't matter how we come out because because the result would be the same we do something i think that's that's very unfair to a man who's lived here for over thirty years that he deserves to have his day in court as as he is having his day in court of for this panel that he deserves to have an immigration judge make that determination that it's sort of a an end around which gets around d process to just say we're not going to get into any of the factors related to whether you get to remain in america forever with your green card or whether you will get deported we're just going to say even though we don't have the facts even though we don't know whether the children have dhaka even though we don't know whether they're u s citizens even if that even if that did occur that you know american got i think that's fundamentally unfair something that this court should not permit going forward in future cases i don't think it's fair to any immigrant who's applying for a green card before judge thank you very much you've reserved two minutes for rebuttal and we'll hear from  in my view underscores the the point in this case that the discussion that the petitioner wants to have today about the immigration status of documented children whether that counts or not count that's the united states government's position on that issue well it's your honor there was a raise below this i knew then that what's your position on that issue here i think that the there is ample evidence and there's ample forty in case law to suggest that family ties to  a family member who has a legal right to remain in the united states and so clearly removing half of the family is not the same thing as removing the entire family so if the entire family is present legally they can they can be removed all of them whereas if part of the family is present legally and you know for example the wallace case the the facts that the court pointed to there were that the tissues mother was a legal permanent resident she had a legal right to remain should serve the united states army and so those were  factors that were that were considered to be strong evidence of family ties to the united states regardless the on on this record the only reference of the petitioner made before the board  to go back would it be improper then for an immigration judge in your view to use as a positive equitable factor the fact that a petitioner had children in the united states who were undocument at the end of the day yes because it's one of many factors weighed together in that that discretionary calculus is insulated from judicial review and in the guiding case and cannot be second guessed on appeal and certainly not under the under the fact failed to to raise anything close to this issue below the only reference to children in his brief to the board was a reference to child support he wanted credit for having paid child support of an unknown amount and of an unknown duration under whether voluntary or not you know we don't nobody wanted credit for that as regards as is to show good moral character which is a relevant positive equity in the discretionary calculus because this is a court is well aware children and you are telling us that that is beyond and we don't really have jurisdiction to review that because that argument was not made to the secretary is correct or separate apart from from the present to the agency his issues in an accord the board a a quote a full opportunity for the board to address its own errors but that didn't happen here because the discussion below as regards children was was ten gentle it was child support and that was just one of numerous a lot of fun interesting about that though was that although you say that the argument was not made the p a a addressed it your honor not not in the terms not in terms that would prepare a record appropriate for this court to rule on there is no discussion in the board's decision about the history of that phrase family ties to the united states what the board did was consider the children as a and the board's found that nonetheless even adding that is a factor to the calculus discretionary calculus which is beyond use review that did not tip the balance in petitioners favor so the board's action mooted the entire discussion of his or seeks to have today if if there was if ever there was an opportunity for him to engage the board in a legal discussion about the authorities and board precedent and circuit precedent about that the interpretation of the phrase family ties to the united states it was when he filed his brief to the board but he chose not to raise any issues whatsoever about that phrase much less complain he acknowledged as a matter of fact he acknowledged in his brief on page twenty three the record that that the record and come up with arguments on the petitioner's behalf so today for the petitioner to now sixty years after having been from the immigration judge for the first time file a brief with the court asking the court to explore and to engage in a legal analysis of of the history and the effect of that phrase on an image or record subverts one of the purposes of the exhaustion statute which is to give the agency a four opportunity to correct it i view it as the final agency decision doesn't reflect the finding that's the subject of this challenge with respect to children fall exactly but my understanding challenges that sequence of events fisher's asking this court to displace the agency to second guess the way to courted by the agency to the fact that he has adult children in the united states of an unknown or an a or a no legal status but that's a discretionary calculus which by statute is is reserved outside of the jurisdiction of the court failing to to provide a jurist a cognizable question of law that contention must be dismissed if not for exhaustion then then certainly because the issue was written remaindered moved by the board consequence having no question of wall to act upon because that there is no contention of that the  your honor i would submit to the court that opposing counsel is trying to have his cake and eat it also he saying on the one hand the b i a fully considered whether an undocumented child could be used in the green card analysis  they would be given the same weight as a green card holder child or us citizen child that it doesn't matter that the petitioner's green card would still have been denied however the opposing counsel's argument also is a bit confusing because they're saying even though the b i i considered this rubric of analysis that my client didn't raise it before the b and it's our position that it was exhausted before the b a a n according to second circuit president in gill the second circuit held that we've never held that a partition is limited to the exact contours of his argument below and littered throughout the brief all references to his own documented children on page thirteen or page twenty three on page twenty i think that the argument is it's one thing to make a reference to your undocumented children it's another thing altogether to make arguments from those references and you didn't make the argument that you're making today the legal argument that you're making today so maybe you want to show us where in the record you made the legal argument that you are making today with respect to the children page twenty three and twenty four of the administrative record where discusses family ties in united states additionally where discusses the immigration judge still should have considered evidence regarding respondent support line two while no evidence was presented regarding the respondents children's lawful status in the us the immigration judge still should have considered evidence regarding respond in support of his children as evidence of his good moral character but that's not your argument your argument today is not the support of his children but the relates to their legal status to undocumented status however you want to describe it i think the argument they were making today is twofold to see existence of his show so is this the same argument about support that you're making today i think this argument is included in the argument they were making today because the first question is whether the children their existence their mere existence in the united states can be counted and then this going on from there whether they were whether my client supports the child or not because hypothetically if the immigration judge would have engaged in this the the argument was presented before the big thank you very much