the legal air is clear the board of immigration appeals apply a heightened legal standard when reviewing the immigration judge's decision it turn in general is disguising a legitimate claim of legal error as an issue of fact legal standard to those facts in order to end up with their different conclusion the immigration judge is the sole fact finder by regulation the board is bound by those facts unless they determine those to be clear lead erroneous no point to the court hold that the immigration judge clearly erred in his findings of fact therefore the facts as found by the immigration judge are those that are before your own legal standard to be applied to those facts exceptional and extremely unusual hardship with the factors laid out and he says that just montreal and its progeny from the board of immigration appeals the immigration judge applied those facts to the legal standard and held the pet his burden the board without assigning error the legal analysis conducted by the immigration judge reached a contrary conclusion because they heightened the legal standard at play could it could give mistrial could you break this down for us met do you agree that the on the issue of applying the legal standard to the undisputed facts the board was entitle to would to no vote determination have a conclusion through the application of that claim standard how is it that we infer that the board in fact was applying a different standard is it because we find the result just dealt don't we necessarily have to view what the board did as a determination that the i j a applied are misapplied the legal standard because it took the same difference but if that isn't i mean isn't the board just saying that based upon these facts these facts don't constitute exceptional and extremely unusual hardship the board cherry picks portions of the record without addressing a number of the factors that the immigration judge consider same legal conclusion without stating that the emigration at ericsson considering those facts before it and in order to make that decision as you described the standard that the board that you think the board used there is this particular way for me to describe it but i would suggest the board apply to high end standard understanding or its finding with respect to the financial hardship is that the determines that the petitioners wife who is still present in the country is still able to work that she has been maintaining the exceptional extremely unusual hardship as opposed to this the immigration judge found that their lives would be significantly changed with the spectacle going back to the asthma then the recent judge suggested that it could be possible that the petitioner son and acknowledge that the children may well have a lower standard of living and reduced economic activities as a result of their father being sent back to ecuador yes the jury didn't find that however the immigration for the questions i think i'm good thank you thank you attorney reilly at this time of attorney mascot could on mute her audio and video and if attorney riley commuters attorney mascot yes good morning your honor so may it please the court i'm jennifer mascot today arguing on behalf of the government this case fundamentally is about the scope of this court's jurisdiction to review exercises of discretion by the government to grant cancellation of lawful orders and removal by statute cancellation of removals a discretionary benefit that the attorney general can grant only certain circumstances and so as petitioner mentioned one of the threshold requirements that has to be shown to get that benefit is that the petitioner's family would face exceptional extremely unusual hardship of the partitioner were removed only once those thresholds showings among others are made can the attorney general through the board of immigration appeals even exercise discretion to grant the benefit of cancellation and removal a benefit that's kept by statute to four thousand dollars cases a year and because the cancellation decision is a matter of discretion congress's limited jurisdiction to review those decisions as  mentioned there's an exception if questions of law or a constitutional claims are raised obviously the court has jurisdiction to review those but the st circuit has repeatedly said that factual claims claims are inherently fact  just because they're spoken of in terms of law or the constitution does not make them indeed legal or constitutional questions are for that's that's stiction advice and i correct that rule applies also to the factual findings of the  to the board your honor yes it yes it would although this court has said that that generally once the board has ruled that the board's decision is mostly what subject to some subject to review here and it seems to me here  correct or the wrong track or yes you are you're exactly right i would repeat fisher's brief the same way petitioner lined up the facts looked at by the i j a and considered important contrast them to the facts considered important by the board and that that of addition or challenging the weighing of the evidence is more of a fact found determination outside of the jurisdiction of the court in a uni versus holder in two thousand and ten where there was concern also about weighing the significance of the child as matic condition that that was something not before this court for review or very st sessions and twenty more similar to the petitioners claim here there was a claim that montreal bore precedent was misread and even with that claim this court still found that it lacks jurisdiction because it look behind the terms of the petitioners challenge and noted that really the petitioner was saying that the board had looked at the wrong and at evidence emphasised the wrong evidence waited improperly and therefore it was asking the century for review of the age the economic impact this case is somewhat distinguishable to other cases in the past because here the mother is already right now providing financially for the children and so she would continue to be able to be in this country  supporting them of course as in all cases with removal if the father were removed from the country there would be an economic impact and so it's a very hard situation but congress put in place in one thousand nine hundred and six  hardship standard and so this court in its precedent in the board has indicated that that standard means petitioner has to prove that the hardship would be substantially different or beyond the normal hardship we would expect when a relative is removed and because the mother here is already providing there would be an impact but it would not rise presidentially to the level of exceptional extremely unusual hardship that the government would submit actually that this court does not necessarily even need to read that reached that determination because here again we're talking about facts the significance of the facts how the facts would change and so this court has indicated that's outside of its jurisdiction to review you mentioned the four thousand statutory ca yes your honor could you explain how how that works in other words does would granting discretionary hardship cancellation here put klu backlog that there are sixteen thousand dollars individuals who have faced a finding that their removal could be cancelled and so right now there's a backlog and so the immigration courts would have to determine which of those individuals to grant to there's actually been guidance put out by the executive office of immigration review and two thousand and seventeen and what it does is is suggest that if somebody in particular is not detained and an immigration judge finds that the threshold factors have been met for cancellation removal that decision actually needs to be held in reserve because the the immigration judges in the board don't really know if indeed that benefit will be granted until they see the total number of individuals who might merit the threshold finding of the benefit for each year so again the what we're dealing with here actually with exceptional extremely unusual hardship is just want to for threshold determinations that have to be made to even make somebody eligible and the because of the captain discretion has to be exercised beyond that the board didn't really review it that much here if it were hansen the record below that perhaps discretion would not be warranted here because of some of the factual record of the petitioner not paying taxes or rast but we don't have to reach that here because the government would submit that there's still a factual problem even with satisfy an exceptional an extremely unusual hardship is a threshold matter there that sounded again more legal in nature such that the board did not mention precedent and things like that and again the court in the st circuit you all in that in that decision i believe that was written by judge thompson noted that  legal and constitutional claims have to be colorable even for the court's jurisdiction here so unless the petitioner can show even that there's a reasonable basis to think there's an actual legal problem with the board's decision that this court would not necessarily exercise jurisdiction arms to hear the case and it alvarado i believe when there were questions about what the claims were actually legal versus factual one of the court's jurisdiction would come into play the court declined to definitively even there decide that it had jurisdiction because the their argument is that it's a misapplication of the legal standard and so i'm trying to figure out how do we look at that argument yes your honor well st the government would say that it that that the petitioner just frame the argument in terms of the application of the legal standard but if one looks at the core of the claim the debate really seems to be over which evidence which  most important facts to which to apply the legal standard so for example the petitioner contends that it was improper to overlook some of the behavioral trouble that the sun has been that the sun has been facing in this country or is not proper to overlook the fact that the mother has not been relying on health insurance to pay for inhaler and has magic treatment under the treatment is getting worse and so while yes the claim is in terms of applying the legal standards to the facts really the claim is that the wrong facts  that the board arbitrarily select the facts to support a foregone conclusion your honor i do think yes the petitioners brief of suggest at times that the that the borg wrongly overlooked particular facts and also that because the board overlooked the facts it must indeed be the case that the board had decided that an unconscionable of the standard applied but the board never says that it has your honour's pointed out during petitioners argument the board actually cites precedent memory all it cites it's precedent non fans all it understands that the factors have to be looked at in the aggregate and again repeatedly this court has said that when the core of the dispute is which particular facts are looked at but the concludes the argument in this case attorney reilly and attorney mascot you should disconnect from the hearing at this time