pro bono representation or to petitioner ms rose one eking and first your honors thank you for a loud being gracious enough to allow us to split the time today with the clock i will be addressing during my time the issues surrounding the cancellation of removal decision and then denise will pick up and discuss the issues surrounding the asylum with withholding and cackling rogers this issue is about the survivor of domestic abuse at the hands of her u s citizen husband being improperly denied special rule cancellation a removal for two reasons that we'd like to highlight today the first the the alternative discretionary decision was flawed as a matter of law because the b i applied the wrong legal standards so that's the only way we can review that determination is and if we determine that the incorrect legal standard was yeah unless you same page you're asking us to determine in terms of the cancellation of removal decision that the wrong stand it was used that is correct your honor and what was what standard should have been used and was stand decision and then secondly the b i a failed to consider hardship as it was required by its regulations so first with respect to rehabilitation matter of edwards requires that are said held that a lack of an objective showing of rebuilding taishan cannot be a per se bar to a good moral character favorable exercise of discretion it can't be the only reason yet when we honor the b i a review dismiss this matter do novo and this is the only analysis that they provide the b i a did make one of the cryptic statements that acknowledged i believe it was the i j properly balance the negative and positive however the only analysis that the b i i gave was the rehabilitation and basically said because rose was incarcerated she can't demonstrate rehabilitation which is exactly the pre edwards view that edwards rejected the second legal claim that we would like to highlight from the priest today is to be i ignored the highly probative factor of hardship hardship is highly probative because in the valar context there are statutes that guide the analysis of hardship importantly here the i g made a formal statutory finding of extreme hardship yet here the big guy a simply in discussing the discretionary decision dealing with the highly probative factor a value of community here the b i a failed to deal with the highly probative factor of hardship and rosewood asked that this court recognize the t v these two legal errors are colorable and therefore gives this court she's the jurisdiction over the discretionary decision is there any indication that the determination would be any different if the titian or wasn't titled to the special rule cancellation your honor no there is not we believe that there is substantial evidence that that would change or at least taken into consideration for instance with hardship you know the just going through the hardship analysis that the v a went through with the i j a went through the statutory would make a difference but but i thought the government indicated that it would be any different it wouldn't be any different under the way they analyzed it by the i guess the point that we're making is that the used government used the wrong analysis that if they take into consideration the matter of edwards and properly analyze rehabilitation and if they properly analyze hardship and consider hardship that it would make a decision i mean i think to be a point of the i j a pointed out that they would that it would make a difference but if they properly considered these legal issues we believe that it would make a difference and so for those reasons we asked that this court remand for that for that the immigration judge concluded that the respondent made her burden prove to establish this she has been battered and that her removal would result in extreme hardship so the finding was made in her favor if that was in the statutory analysis you are not in the discretionary decision one has to go further down the page in fact i think i believe the government quoted that in the answer brief and we pointed out that that's a statutory decision the only mention of hardship in their discretionary analysis is the word hardship so let me ask you what case you're relying upon to support the proposition that the discretionary determination hardship must be considered finding that the when jackie increase regarding grosses whereabouts were threats or did not finding that the siblings in hiding or earth in finding the roses stillings in hiding meant that they were safe and urged in finding that the ca government would not acquiesce to grossest torture and because of proper consideration absentees errors compels the conclusion the roast will more likely than not be tortured by the wind cheeky with the acquiescence of the cain government in threats substantial evidence does not support the finding that the increase regarding rose's whereabouts were not threats rather it compels a contrary conclusion that the magick is demands to know where rose was located or threats to your  your honor petitioner's mother first lived in the yuri where the first attack to occur and there she was getting raped and beat and then she moved to nairobi where she was attacked years later again by doing and then she also lived in a room that's where she was in attacked but then she was attacked or attempted attack a third time that she was able to escape in the room i believe it was in nairobi as well so i thought the record reflected that when she relocated to my room there was not any attack which would indicate that the petitioner could also relocate within the country without fear of torture well you know honored in regards to whether she can relocate the record also as evidence that the moon jakey have a huge network of informants and rose's mother faith testified credibly that even her own family could possibly sell her out because when g q often seek favors especially from they specifically would persecute rose it's in order to control her mother here the record shows that and all use your on the record reflects that she had no personal account or encounters with the right no your honor and personal counters are not required ashcroft threats are not idle when family members back in their home country are attacked in here gross's mother was attacked and let evidence is there of threats to rose as opposed to her to her mother in regards to the threats to specifically to roast that would be increased while they were gang raping and beating their mother asking where her children were located in addition there's evidence in the record that as early as in december two thousand and sixteen then when jackie went to faith's old beauty salon and asked where specifically where their her daughter in the us was located and that's a day and roses the daughter in the us and her other siblings were still in hiding in kenya hiding from the moon and they went into hiding remain on her case and this course stated in their motions to remain and to seek new evidence that was not billable before the i j a to be admitted must be addressed and it's an error not to address those motions part because the agency's conclusions in this case are either under viewable and just positive discretionary determinations or factual findings that are supported by substantial evidence while my friends have discussed  agency's lack of an explicit mention of hardship with respect to their cancellation denial is a matter of discretion the look at that paragraph is a tad my authentic in the sense that i would draw the court has made it large has made a lot of fast about the sentence where the agency has said that the petitioner therefore has not demonstrated that she has been rehabilitated i'm sorry i was talking about rehabilitation and not hardship i have apologise but in the same breath in the same paragraph in the very next sentence in the next sentences the agency also says that given the petitioners quote long history of alcohol abuse and driving under the influence her claims that she is properly rehabilitated while in detention are speculative and as are all its and properly made made note of rehabilitation the detention status of a petition while they rehabilitate is certainly relevant to the same corey it cannot be seen as a purse a bar to proving rehabilitation but the ability to rehabilitate in a controlled environment in which the person has no exposure to alcohol positively show that she can rehabilitate in a context where she doesn't have those controls and this when he has shown repeatedly that she fails to rehabilitate in those circumstance affect the termination in this case your honor i don't think it would because it seems apparent by the agency's decisions that those considerations were relevant discretionary a discretionary denial on the discretionary denial which the board also cites and that is that page i'm sorry for flipping here  assumes that she had met in the alternative had and that those criteria and so that is just in the middle of a long paragraph in the present case even if the respondent were statutorily eligible for cancellation she would not merit it as an exercise of discretion and i would i would stress again on the cancellation aspect before moving to the merits of the withholding and cap claims that the petitioners challenges regard trying to frame this as a legal question the court has repeatedly held that interviewing whether that's a legal question or not a challenge of the legal standards that the board applied is certainly a legal step challenge but in this case the board clearly reiterated and followed its own legal standards which are to review discretionary determinations de novo and to weigh all factors in determining whether or not if to share merits that discretionary grant of relief and at bottom the petitioners challenges are more with the weight of that determination of weight those factors got rather than whether they were considered in the first instance by the board i'd like to move us the court has no further questions that cancellation so the matter of withholding and  protection and since the court appears to not have a lot of questions i will be brief and concludes you know i do know you guys i'm sorry thank you for taking so much time on the cancellation then and with respect to the withholding speak just very briefly the agency's determinations are supported by substantial evidence and this court's substantial evidence review standard is a strict one that the record which  suggest alternative conclusions does not meet that standard of substantial evidence review is there any evidence in the record that the petitioner siblings are not in hiding there is no concrete evidence  opinion suggests that the petitioner can just do with their siblings are doing in the live in hiding and that's does not seem like the right answer if that were the only basis for the relocation finding honor i would agree with you that that is insufficient however the agency also considered the safety of rose's extended family in mariel and those family members their circumstances are directly relevant because they like rose's siblings are related to rose's mother and therefore their safety also does suggest and there's open safety in an area of can there that is not within the zone of influence of him and he and in which women are not subjected to f e m as a matter of practice their safety and living situation in marrow is relevant to the relocation analysis and the agency properly consider that what was their statement was a statement that they can they are sure they will be going to rose testified yes rose testified that she did not believe that she could relocate to morrow because she hadn't spoken to those relatives in a long time now that conclusion on its own is not compelling that she could not relocate there given the rest of the voluminous country record evidence that shows that the moon geeky are not active i'm sorry it does not explicitly say that t testimony her mother did say just yes i'm sorry i think i need more coffee the mother did live in mario in the ninety's for about a year and safely she also lived on the southern border of agree that they have specifically inquired about her based on the one statement that the mother made during testimony that they asked her former co worker but the woman who now the person who now operates her shop about whether she had returned but i acceptable so that's my question i understand that yet you don't think that's compelling i don't think that that alone is compelling based on this court's precedent about when threats compel a conclusion of likelihood of future harm your less probative weight because during face testimony she did not repeat that statement when describing her experiences she did not repeat that her daughter's children was frightened during the rape of the number of times that something is a matter of course your honor but it also the little boy in testimony that we have to count up the number of times oh no i'm not i'm not saying that it's just positive but i am saying it goes to weight and  the more contemporary is contemporaneous testimony from faith that she did not repeat that that that tragic occurred during that event and when she was asked repeatedly during testimony was your daughter did they ask about your daughter did it they threaten her her direct testimony was that yes they did after i left and they asked about her at the shop but that again that ask was not coupled with a threat in that more immediate and i also am not sure that that is a convincing a convincing that it proves one way or the other that rose was directly that them and have continued interest in rows but i also want to emphasize that that's not the standard of review that that i have to meet or that this court has to use the standard of review is substantial evidence and that two conclusions are possible does not mean that the petitioners have prevailed that the evidence especially just given the totality of the circumstances and roses time in the united states her lack of exposure to the movie directly and her family which are because of their relationship to her mother in a similar situation circumstance and live safely within kenya are all record evidence that does support the agency's conclusion even if the agencies points about these threats are not as as fulsome as we'd like them to be counsel do you agree with opposing counsel that the board feel to denied of the board's decision do not contain the words we therefore deny the motion to remain and nor does sometimes most of the time on the board's decision in the caption on the first page the requested  relief is usually listed in here just as appeal and not appeal in motion but i would say that the motion to remain and that was contained within the no to brief on appeal to the board on the very last page in a separate haueter but was not captioned as a motion to remain and in issue statements were in the summary of that argument was directly related to the timeliness issue in this case because it was essentially both the challenge of the agency's timeliness issue we're both dealing with whether the two thousand and seventeen elections constituted a material change that both required the board to the agency to consider her asylum application timeline but also would have material weight on her claim as a whole and in that regard the agency did reach the materiality of the new evidence that she submitted on her appeal to the board and so our position is that the board reached that issue enough and the the court can deny that portion of the petitioners or petition for a view with respect and very quickly with respect to the petitioners arguments today that the agency engaged in improper fact finding with respect to that finding i would argue that those arguments are i've had mis placed as the board when they're determining the board when they are faced with a motion to remand during the pendency of an appeal before them they treat that motion as a motion to reopen and motions to reopen need to be based on material new evidence and therefore in every case for  decision cannot make factual findings the board must decide whether the evidence is material in that limited function