good judges that have the authority to try criminal cases and they are not supposed to make a redetermination of guilt and doubt is in a sense what happened here the the judge  petitioner tell his old words what happened that would be different we're not saying that the judge cannot consider as an exercise of discretion what happened all of this dismissed charge what we're saying is the manner in which he asked the questions of the rules do permit the immigration judge and the terms and interrogating cross examine doesn't have to be a simple please tell me what you'd like to tell me today that's true your honor but when the judge  that if he admitted if you had admitted to being part of the elements that the judge wanted him to admit to namely that he had in fact committed prostitution in fact the judge would not have had the discretion t out in circumstances where the petitioner arguably had nothing else that could be said that would get the questioning stuff and i think that's a legitimate concern when i look at most of the due process cases seem to me to speak to ability to present the kinks that if somebody has been cut off and not being allowed to present what their argument is and i'm not sure that concern is quite so strong  well you're either there were numerous questions where the petitioner started to answer the question or the judge cut him off at half stream before he could completely state what his answer to the question what's so examination witnesses are required and are often required by judges to focus and answer precisely and may get cut off of the counsel's asking question which the witness isn't answering and then later during director redirect or or other examination the witness can expound as much as he wishes well this is not opportunities to expound here that that were not utilized so was there anything really that wasn't said maybe not at the moment that he wanted to say it was there anything that he didn't get a chance to saying but i don't think that he got an opportunity to fully explain what happened because when his counsel redirect attempted to elicit that information the judge said do you really want this to go into this again and it's counsel at that point are to find an alternate basis for adjustment but she still has and still has to this day permanent resident status because it hasn't finally been terminated and under the regulation under the if a person already holds permanent resident status that may defer or de lay person's claim for asylum still has a better status and in fact in fact in this particular instance the facts that gave rise determining whether to grant him adjustment of status as a matter of discretion and this court has held in tampa screen you know twelve thirty eight forty nine that unfavorable discretionary factors include quote the existence seriousness and recency of any criminal record and other evidence of bad character or the undesirability of the applicant as a permanent resident that's what the immigration judges questions were designed to elicit and i think it's important to note in this case that the case is relied on by petitioner regarding findings of bias or findings of inappropriate conduct by the immigration judge and uniformly involved situations where the immigration judge cut off significant testimony refused to allow testimony or evidence to come in and in this charge and it's questions actually were born from the inconsistency that developed during cross examination it's not like the immigration judge sort of went far afield from where the hearing was going  that on direct testimony the alien had testified no it was all sort of a misunderstanding between me and the policewoman and on cross examination when the d just attorney started going through the information the police report is this what happened yes is this w happened yes now you have a material conflict in testimony and that's what the immigration judge really was pursuing after his questioning concluded during which time she did intervene objections from petitioners counsel the immigration judge finished his questioning offered petitioners counsel an opportunity for redirect which was taken briefly offered just counsel another opportunity to question and then give to chance counsel two chances to present closing arguments both of which were declined at which point the immigration judge took the twenty minute recess before coming back to issue his oral surgeon i think the record as a whole in this case if you read it cumulatively demonstrates an immigration judge who was very concerned  suggests he was kind of put in a position of having hobson's choice i think his choice would be actually was to be upfront about his prior conduct at the start of the hearing are especially even on cross examination but i think it's clear from the immigration judges that he relied on more than just this performance on the stand or this certainly it wasn't that i don't think the fact that he believed that petitioner solicited prostitution it was the fact that he believes or has not been forthcoming about that conduct again in the context of a discretionary grant and in that regard it's important to note that the immigration judge actually relied on at least three factors in his ultimate finding the testimony of both immigration judge finding then is put into the context of the board's order which is very thorough which goes through as your honour's probably know is much longer than the board orders that many cases that we see and then balance those same factors against the positive equities in this case you have all bouncing of the factors like i don't think that the immigration judge frustration about this issue that occurred during trial was really the sole deciding factor he certainly wasn't passing any moral want to leave you with the wrong impression i understand that but when i try to figure out what's the impact here you know i don't hold you at all accountable for the the idea of these potential lack of civility thank you and the circumstances are what they are you get we all look at the cases  error on the part of the immigration judge haven't come forward with any showing of prejudice or how the outcome of proceedings would have been different again based on the complete balancing of factors by not only the immigration judge but by the board they haven't identified any point before the immigration judge at which they wish to but were not allowed to provide for their testimony or evidence and understanding that they can't prove a negative certainly it's reasonable to expect to proffer that oh i don't know if by some point in the hearing where they were prevented from he was prevented from presenting his case and out with that if there are no further questions about the immigration judge by can quickly turn to the motion to reno and before the board i just want to really make clear focused on to nurse arguments that because he had temporary status of some kind that that i merely rates as an untimely finding really for lack of better way to put it is mixing apples and oranges that rate is twenty eight point four hearings and decisions from the immigration judge in one thousand nine hundred seven and thousand two you certainly could have at some point during that time if you had a legitimate fear of being returned to yemen you could have put your asylum application before the immigration judge at that