by the attorney general i think they say that it's recasting that exercise and into constitutional and factual issues and i'm sure what factual issues they're referring to but in any event you seem to be these being recast into a legal issue why are they not correct where this court has previously said that someone has been recasting issues it's something like you know a job bar where either the petitioner is making no effort to tie their claims to a particular constitutional or statutory argument in any developed way for example in job when you know he's arguing with the immigration judge gave short shrift to crucial evidence ignored certain evidence failed to consider certain evidence there is not the sort of attack on the overall legal standard or systematic analytical process that to b but many other courts of appeals have as we address primarily in a reply brief since it seemed to be the area of the government was focusing on income on in the second circuit to twelve c is a discretionary application but the petition analytical mistake by focusing on present hardship situation of the child or children instead of what they would suffer in the future eighth circuit found your stiction in a limited all in the first circuit which was applying the slightly different president this is what we've attacked on in one case at least sort of the first two part point that we make is about the merits of the president as opposed to the b a s ability to follow did or not is none raylan and the case in two thousand and one where they say in effect yes we have this previous cases already discussed extensively their previous at heysel on move now they did and they rejected it for our reasons that we think are petitioner and all other applicants for nonresident cancellation of removal hamp have criminal records i n h u forty eight b one c as we discussed in a brief bio recent cancellation for people with criminal records so the appropriate period to compare to would be cancellation of remover a rather suspension of deportation requiring exceptional it's prima unusual hardship for people with non criminal records they have years of case law on what that means which under lorillard we think congress d you mean because it wasn't at the same type exist it wasn't the immediate law ninety six law replace it was it was in a different context exceptional extremely unusual hardship continued to exist from sixty two to ninety six it just it was applied only to criminal aliens sorry so it did but the lead this standard does exist is something that they had interpreted and have case law on and that's not the only mistake that we think they made the other issue which the eight means you have to have the whole ten years before you're put into proceedings with the requirement that only hardship to often relative be considered with the there's in the end a cap actually four thousand number cap on the number of people who can be granted cancelation decided in the end does all the dissents rely on that's i n e two forty a run so there is well when they say in effect that no reasonably common fact pattern can qualify no matter how sort of objective least severe of the hardship i think misreading of congressional intent and design but that's only one of the three sort of classes of errors legal errors that we've said they've made here the next one is a combination of their president and their way of distinguishing the precedent the precedent in example parents who are lawful permanent residents those things are all well and good can cigaret the later discretionary stage the final stage if this person has established the hardship of their child do they merit cancellation but that's not the stage that my clients having a problem with the immigration judge pacifically said she would be granted in the exercise of discretion yeah called the case sympathetic and didn't address it and it makes sense because there are other positive discretionary factors like the fact that she herself was brought here by her parents when she was only thirteen which would come in at that stage but the stage where you are determining whether there is to quote the statute exceptional and extremely unusual hardship to the alien spouse parent or child was a citizen of the united states or an alien admitted for lawful permanent so i left the admitted for permanent residen singular that is there are exceptional extremely unusual hardship to this child so we at that stage of the analysis it's not an appropriate basis of distinction to say you have only one child granted cancelation and for us citizen children plus us citizen parents therefore your case is distinct that goes against the text of two forty eight b one d they should have saved those factors for the final discretionary analysis and it's conceivable this is sort of a pretty rebuttal maybe they were trying to argue that they're making a finding of fact about the specific implications of there being only one child who are the hardship to this child specific lee which could go either way the mother only has one mouth to feed but there are no brothers or sisters to keep the child company while the mother is working the immigration judge didn't make a finding of fact one way or the other on that and what we've been arguing since the briefs that have gotten what case law support for recently that was addressed in a couple of the twenty eight jail letters we submitted as this court held them coupling even these predictions about the future a finding of fact and as the second circuit recently pointed out and pad more of the prohibition on making these findings of fact also applies not just where you're reviewing and i'd j finding for clear error as in kaplan but also where the i j a is making a finding it be a rather is making a finding hasn't been made one where the other below and so the b a was committing one of these two errors we think it was misreading the statute and just saying in effect that we can or at least applying the standard not necessarily saying they were applying a standard as we pointed out from all for other directory guys what matters is the standard they apply it not what they said they were applying they are either applying the standard which gives way to the hardship stage how many qualifying relatives you have where they're making their own findings of fact about the implications of how many qualifying relative she has and neither is permissible so that's the second point and we think that's clearly an issue of law were objecting to the analytic logic they're using in the same way that in gomez perez the petitioner was objecting to looking at the present circumstances of the children rather than the future or in the same way that in lieu metod the first circuit found jurisdiction where the b i a had in effect charged the petitioner with time over running the one year deadline before the one y deadline even existed and failed to give him credit for time when he was on his wife's application so in its nature clearly these are issues of law and then the third issue which i think in its nature is also clearly an issue of law is the unconstitutional conditions constitutional that problem is actually a quote in the append joint appendix it to twenty six that somewhat illustrates this although it's only d h s argument where they say the child is going back to her country it's not her country she's a united states citizen she has the constitutional right to remain in the united states and while we accept and have stated since the opening brief that under a cost that doesn't give her mother a freestanding constitutional right to remain here because congress could have refrained from an act in this cancellation statute at all that doesn't imply that congress can enact this statute and give this year citizen now seven year old child the privilege to be free from exceptional extreme unusual hardship but only on the condition that if it's the out option she give up her right to remain in the united states and instead in effect get deported to mexico with her mother and under de bortoli oh the any constitutional doubt raised by that problem trumps chevron deference you don't to an administrative interpretation that would raise constitutions of central constitutional issues the way you normally would defer to any other administrative interpretation it's important to know there i think also that the b i a is quite clearly comfortable with making counterfactual assumptions for policy reasons they have been in this very case said at eighty three of the joint appendix that we are not willing to assume that relatives who don't have lawful status in the united states will remain here it's outside the record i understand one of the relatives may in fact have gone back but that's not what's in this record so they're clearly willing to say as a matter of policy we don't think the statute prescribes that we just look at sort of what will happen as opposed to what should happen is a matter country if she stays in this country and she doesn't have her mother here and that's a hardship i understand it but that happens all the time matter of fact even a totally different cont other than her mother isn't going to be there to responses to that you're on the first factually there is in the record of this diagnosis that she has separation anxiety disorder and in fact to be a dismissed it specifically because they said she  you know that kind of evidence you know what you're doing here is think about it you know it's easy to be sympathetic with these people very very easy but we can open up a system where you know  your honor the few responses that one i think there's a chain or a problem with defending the b a s decision on that ground because the b i a e a explicitly refused to consider the hardship to joanne if she remains in the united states and a mother returns to mexico  six thirty seven of the joint appendix we have been trying to raise this hypothetical issue and the b a a has explicitly refused to analyze that because they have said yes as a factual matter she will surrender her right to remain in the united states at least temporarily in order to try to exercise what under her view is their privilege against her privilege against exceptional human your hardship but i'm just saying in response to your honor's question judge greenberg  respectfully don't think it would be open to this court to affirm on the ground the be i never raised to be i has been very insistent that because as your honor said that is not factually what's most likely going to happen that they will not  legal standard i think the supreme court precedent is pretty clear i'm not beyond that though your honor also to address first i think the hardship is more unusual because there's a psychological diagnosis in the record regarding the separation that the b i a said wasn't material precisely because it wasn't acting on the something and the other point i wanted to make and what you were saying about discouraging sort of the number of people doing this that gets back i think to how difficult it is to qualify for this form of relief even completely apart from the you have to be here for ten years before any notice to appear is issued against you in addition to having to completely clean record and so on and the only four thousand people in the entire country at any fiscal year can be granted this relief anyway and they're only looking to the hardship to your child or not to you they don't care how bad your life is it is at least not rational for people to come in and have a child on the assumption that even if the b i either backs off its refusal to make this is something the child woman in the united states or backs off its overly strict interpretation of hardship that people will suddenly you know thousands and thousands and thousands of people will be being granted cancelation organize them are the yeah i know this is happening because a couple of responses they honor one is that i don't think it's fair to my client to caster as having made this choice i think this can certainly be considered as a matter of discretion of the ultimate stage not the hardship stage how she got here and as i said before the record demonstrates that she was brought here at age thirteen she was eight strong to pay eight and one forty forty one forty five so it is entirely proper for the immigration judges in the b i a to consider that final discretion stage even if you get past all these other hurdles even if you establish hardship the ten years and everything we have no quarrel with their considering at the final stage out of all the people who might be eligible for this are you one of the most deserving sympathetic not guilty of how you came here people that we've seen there are you not we think in this case my client was fair quite well they did that analysis i said the immigration judge said she was deserving an exercise of discretion if they want at that stage to consider whether you're trying to abuse the system whether you came here of your own volition as an adult whether you seem to have preplanned this any number of such things we completely concede they have the full authority to consider that in their final exercise of discretion where my client's other positive factors will come in the let me ask you questions again and do you did you actually prepare the brief yes i did ok the only question i have is i think it's it's a little bit risky and perhaps presumptions that as you said here the sole issue before us is the jurisdiction where you do not at least cover the merits of the petitioners argument in an event that we don't agree with you on the jurisdictional question because you  as legal challenges she is merely contesting the factual findings of the discretion determination and i apologize for that type graphical error in the summary of the argument in my prayer this court has held that there is no jurisdiction in such cases where no co purposefully tightened this regulation such that only four thousand people are granted this have a relief as my opposing counsel pointed out congress purposely decided to tighten the hardship standard in response to what it deemed was being too lax it went from just extreme hardship to exceptional extremely unusual hardship there has been no indication that the boyd misapplied standard of montreal and and  if the court wished to overturn that decision as it applies to this case in particular it would be able to however so that would be a question of law with no cracked or in the can seems to me that the petitioners arguing abstractly yes that would be a legal argument however petitioner has the burden to demonstrate all the hardships which should be considered and in this case she took about one off the list and therefore the board would not have needed to consider this mood argument and child here in this case the boy discussed matter received as and the number of children that she had compared to petitioner here however that was not the only factor that they discussed from matterson us in addition to all the other factor is the bo properly weighed all this together which then goes against you the discretion or germination that they had in the situation and therefore there would be no jurisdiction to re evaluate how it weighed in balance those factors do you think we have jurisdiction to review that no i do not believe so even if we conclude they were wrong in distinguishing between the number of children is that doesn't appear the bird was not in are incorrect in distinguishing the case matters matter seen us from this case it did not misapply it rather discuss the differences so there would be no legal error there for the court to review i think at the outset it's worth reemphasizing because counsel for the attorney general has referred to us having taken the issue off the table of the hardship to joanne if she remains in the united states that counsel below made her and then my best efforts to put it on the table the record contains an attempt to make an opening statement which she's refused permission to make you know in effect to make an opening statement the judge tells her basically to move straight to questions that's trying to place an appendix one forty one forty one she tries to ask about the hardship to sustain the objection that this hypothetical is relevant we did not take this off the table now as you say your honor i'm happy to discuss the merits of whether it should be on the table but i don't think it's fair for the attorney general to blame us for taking it off the table as an issue of law on the jurisdictional point which as your honor some said is basically the only point that they're contesting the point where the final footnote actually i think in effect concedes that if we've made any colorable legal arguments that should be remanded basically for the b i had to take another crack at answering them i think this is very clearly parallel in each of its three parts to the various out of circuit cases that we have cited applying the principle that this court put forward in a lot about application of an erroneous legal standard being a question of law two rather than a lock as twelve fifty two a two seed bar for criminal aliens which is another class of areas where congress wants to remove from the courts oversight over basically anything that isn't a question of law but when you argue that the wrong legal standard is being applied as in the lock of what's considered a particularly serious crime that this court has held is reviewable but several other circuits have held this court hasn't gotten to that finally yet between  my children as it exists now as opposed to what it will be in the future that's very similar to our argument about their improper distinction of or seen us you shouldn't be considering how many children i have been adding them up at this stage you should be considering what the future hardship will be merits where the question is the b i a has irania slee charge the petitioner with time it should not have charged the petitioner with and has failed to give him credit for time it should have given him credit with these sorts of analytical mistakes applications of the wrong legal standard are different from a mere statement that the b i a should have weighed the facts differently on the same scale were saying in effect they're using the wrong scale or scale that's different from the proper scale that they were using if we had conceded that would have come out