well here the next case versus bar themes in appropriate deference by one agency component to another agency component failure to explain decisions sufficiently and i think the bottom line across a number of areas is that no would you decatur with a proper understanding of the law has ever evaluated the facts of this case and said that mr result deserves to be denied relief because st the immigration judge in our view incorrectly deferred to this u s c i s finding that there had been marriage fraud whereas under herrera del orden and eight c f r one thousand and three point  the immigration judge was supposed to review that did know then i mean are you denying that the st wife stated under oath that he had paid her to marry him and that they had never lived as husband and wife she definitely stated under oath that they never lived as husband and wife i think when you say pater to marry him the statement actually says he gave me two thousand five hundred and we began the process for his green card and two thousand five hundred after the st interview was done in the context where he has testif marriage as a husband supporting his wife but about a dowry is what makes what the wife brings to the match right now in islamic law apparently a mars with the husband brings to the marriage and that's canvassed at a great deal in the record in there was actually written testimony from an expert witness a you getting deep into the facts and our ability to review is limited to constitutional and legal errors we don't retry the merits of the claims where where are the legal and constitutional errors that would allow us to afford a client really yes your honor so on the seven hundred and fifty one issue the legal error is the immigration judge not exercising to nova review under her and l orden when she was saying opening correct the first granted reconsideration and then dismissed the appeal it also denied reopening when it granted reconsideration and dismissed the appeal that was relying on the immigration judges fact finding even though that fact finding had been flawed by an error of law that the now concedes in granting reconsideration existed the immigration judge incorrectly thought that mr was all a couldn't be eligible for a two hundred and thirty seven  continued to go forward on the factual record that the immigration judge had constructed in reliance on that error in order to make its purportedly do novo determination so this strikes me as being like poor where the th circuit said that it's an error of law legal question i'm taking the position that once they reviewed the law do novo and found that the only fact finder because you're right they can't review facts nor i can't find their own facts but if the only fact finder has been operating under an incorrect impression of the law regarding eligibility then which we cited from the th circuit if the record is constructed in a way that the record is impacted by the incorrect legal posture through which the i j a viewed the case so here the i j a didn't want to hear from the nd wife on discretionary information you know saying that that doesn't go to the question before me in effect about the bona fides of the st marriage because the idea is ninety it should be sent back for the i g to redo the factual record yes to redo the factual record they never lived as his why and that would go to the thing that needs to be waived the two hundred and thirty seven a one h is the has now confirmed can definitely be granted if that's all true and so they would hear from the nd wife about all the discretionary evidence she wanted to present they would hear from the employer about all the discretionary evidence that he had wanted to present and in the initial hearing the immigration judge didn't want to hear from these witnesses because in her view they weren't material given that the bona fides of the st marriage had not been established and this is the issue where the makes this related of law under the statutory provision regarding the right to present evidence to forty before be where they're taking this prior attorneys two words out of context who says there's nothing new but it's clear from context and she later says not on the issue of the on the motions to reopen our position is that jurisdiction is not restricted to issues of law because under the st circuits persuasive decision the jurisdictional bar that attaches to the underlying relief doesn't attach to the motion to reopen and so there i think the court does have full abuse of discretion review regarding the b i use failure to explain what it was about the new evidence that meant the b i didn't think it was sufficient to change the change the outcome there as well though there is a legal error because the finds itself talking about whether the i j a reasonably considered these discretionary factors that's not do novo review that's clear or review which to be should never be performing on an immigration judge is discretionary determination so there is an error of law even in the motion to reopen denials but beyond that the court's jurisdiction there is not restricted there's i think i see my initial times i will hear from the govern good morning great pennington for the attorney general there's a lot going on in these three petitions the genesis of it all was the st marriage and as the court's already recognized the court doesn't have jurisdiction to review whether  it was entitled to a waiver of the joint requirement to file a petition to remove the conditional status of his status he got from his st wife so i'll just briefly address the allegedly evil or constitutional  the marriage and then move on to the waiver now st mr zala says that the judge was adjudicating the wrong petition and there were two petitions to remove the conditional status the st was the joint petition where the wife went in and said that marriage ended in divorce so he had to seek a waiver of the joint petition requirement now it's titled a hardship waiver but there's three ways they can get the waiver and all of them are and sole discretion of the attorney general to grant so the court doesn't have jurisdiction to go petition which she couldn't have so the nd error is whether the board applied the correct standard of review in reviewing the waiver to the joint petition requirement and it did alone doesn't change that alone said that  mixed question of fact and law that the board has to review but the board's decision states st found the credibility determination not clearly erroneous in several other factual findings and then it affirmed the ultimate conclusion to deny the waiver of the joint petition requirement so moving on to the waiver so he's not eligible to remove the conditional status because he did not enter into a good faith marriage so he needed a waiver of the ground  i really see is that the immigration judge allegedly restricted the testimony and didn't let the nd wife testify to the hardship or any other discretionary factors in the positive realm the record just doesn't bear that out he was allowed to testify and again we're operating on the premise that he has to show a constitutional claim so due process comes in here the statute only requires a reasonable opportunity to present evidence common law procedural due process requires the same reasonable opportunity to present evidence and he was given that opportunity during his direct examination the judge never restricted what he could testify about he was allowed to redirect and they never said we want to call the wife so there's just this one statement that the judge said well nothing that the nd wife is going to testify to is going to go towards the original waiver to the joint petition and the lawyer said no nothing new but that was that was the lawyers opportunity to say nothing new on the waiver to the joint petition but i'd like to submit testimony on the on the discretionary factors for the fraud waiver she never did that during direct examination or on redirect or when the judge asked if there was any more to testimony the government would submit that that's a reasonable opportunity to present the evidence she wanted to present and even if she would have to show some sort of prejudice and if you look at the witness list that the attorney below submitted said what the nd wife was going to testify to and everything in the immigration judge's decision reflected that she credited all of that she credited every actually picked all the positive factor boxes in the discretionary and terminations it was in her discretionary view that the adverse factors outweighed all of that so in her view and in over a view according to the board the original fraud combined with coming into immigration court and testifying and not just saying yes i messed up but i still would like to remain continued to testify that this marriage was entered into in good faith and the immigration judge just didn't believe that and the board and over of you said yeah those adverse factors are pretty serious and and so that when he's not operating under and there's just no evidence in the record to reflect that that influenced the immigration judge's decision she made two separate findings a statutory eligibility finding which the board disagreed with on reconsideration and she said even if you're eligible i'm going to die this as a matter of discretion so those are two alternate findings there's nothing to suggest that the immigration judge said well because you're statutorily ineligible i'm also going to weigh that into my factors in the discretionary context there's just nothing to show that and recreate of a new record would have no benefit and i would say on that point is the board is the ultimate arbiter the attorney general's regulation the board has the final say on discretion and the board says no in the original decision it says no on the st motion to reopen it says no on the nd motion to reopen you submitted a lot of evidence to show that he's a fine citizen he's doing well he has children he has a job he pays his taxes but in the board's view the discretionary factors on the adverse side of the column are just too much and ultimately is the board with respect to one thing i noted that we never heard the government or the b i a mention in terms of hardship factors and this can also be an error of law under mendez is the adverse country conditions evidence and the fact that he had more than one child by the way the board is talking about the one son not mentioning country conditions at all so that can be another kind of error of law under mendez but also in terms of this idea that there's no evidence in the record that this effects the judge's determination there's this whole conversation and this is  i think to the extent that one ought to give some benefit of the doubt when the fact finder is operating under a clear legal error it's at best unclear i think the view most favorable to the government whether this affects the construction of the record and to the extent that my opponent is suggesting that counsel should have insisted well judge i want to call this witness even if you believe that it's irrelevant that's not something that the agency suggested below perhaps because they don't want people calling witnesses the immigration judges have indicated irrelevant so i think there's a problem with relying on not going back for a moment to matter of t we have challenged matter of t as a matter of law is inconsistent with the effective date provision that's the case that says that my client couldn't have pursued the joint petition and the government's only defense is th board couldn't have overturned matter of t which of course is and could have and even a matter of t they remanded for pursuit of the waiver application the other thing that i noticed was not addressed i think at all by my opponent or at least very much is the motion to reopen petitions with respect to the new evidence where i think the only argument that's being made is well the board of immigration appeals has said bottom line this isn't enough but there are two problems with that one is that they haven't explained why it's not enough which if we're correct that this court has  under means that under cases like present a tie in sanchez and an anderson it's not enough to just say this isn't enough to give that conclusion you have to explain why the evidence isn't enough or else it's an abuse of discretion the other problem is that the board didn't say we are taking responsibility for the determination that this isn't enough that he still should lose they said the immigration judge reasonably considered the issue of discretion that is reasonably considered is not a de novo ward that is not something the like the rd circuit just like has some f in the th circuit if the board is giving deference to something that it shouldn't be or not giving deference to something that it should be that's a question of law and that was clearly done on the nd motion to reopen which for the reasons we've explain decision actually saying de novo we find that as a matter of discretion even assuming all this new evidence is true he should say thank you we reserve decision