for the principal argument i wish to press is that the board of immigration appeals did not follow its own precedents in sort of affirming in effect by dismissing the appeal affirming the immigration judges use of multiple arrests and convictions for violations which under new york law are not crimes in his waiting of factors in deciding whether to grant a discretionary benefit i'm not force pealing the discretionary benefit because we don't have that we don't have that jurisdiction what i'm arguing is that the process set by the board of immigration appeals itself requires certain amount of due process and that it violated their own way of viewing how you deal with criminal arrests that do not result in convictions particularly in convictions for the crime police four times and she testified also before the immigration judge that she called the police less than ten times about his conduct so it's not like it's just the police reports right you know and i do want to make that distinction what what the respondent himself or what the evidence showed totally apart from any arrest evidence is of course proper for the judge to consider so to the extent that he had minute throwing a bottle at a car or  several of the other things i don't think he admitted even work even close to most of the conduct and in the only instance where there's actually a conviction for a crime the misdemeanor of obstructing governmental in ministration he had been arrested actually for presenting his brother's driver's license when he was pulled over he was a limo driver you testified that he really did that by accident but he took the agreement because he didn't want to be take the risk of being convicted of felony which would have been disaster for him immigration well right but i'm just saying he didn't concede actually that he had even committed that crime in terms of knowingly presenting false evidence so that's the only actual conviction the other there are these you don't need an actual conviction a police report can be considered by an i j and making a discretionary determination well that's what i'm asking this court to say is not proper for various reasons we first well under the thomas case itself which is a big case the case that the board relied on that was still on appeal that can't be the basis itself for removal if the case is still on appeal but they held that because a jury verdict is very reliable that talking about something being a basis for removal i understand about what can should there be some discretionary decision and i don't see why if you can consider police reports i don't see why you can't consider arrests and why you can't consider the person's admission that he did some all of the things that he was accused of the latter i agree that the admission stands on its own it wouldn't matter whether he was arrested or not with respect to relying on police reports in this case there weren't any actual police reports because in new york those are not filed as part of the criminal court record unless you're already at the trial stage and then it's like one of thirty five hundred material what's filed is a complaint to criminal court complaint which is almost always a hearsay complaint and that's what they had here there were cite the instances in the record where the complaints were filed but most of those things did not result in an adjudication of guilt of the crime of arrest so simply on that basis it's not i think it should not be considered reliable particularly if a case is dismissed and particularly because as i raise in my argument a case is simply dismissed even for a procedural ground or the complaining witness fails to show up in court or something the defendant has no opportunity to show that he was actually innocent actually innocent of the crime charge and so our system says we're not going to presume that you were guilty of doing this conduct if there's no conviction for  when it's a little more difficult with the violation convictions violation convictions here were mostly disorderly conduct or harassment in new york in the new york criminal courts frequently a disorder conduct plea is agreed upon by a defendant because number one is told always told by the judge this is not a crime and it's sort of a fiction if if your chart with petty larceny shoplifting and you plea to disorderly conduct in the doesn't mean you are really disorderly in the school or something like that it's just a kind of a an accommodation that results in a non criminal adjudication with some penalty and he can look at other factors not saying that this if i were correct and this court were to say the i g is not entitled to look at the complaints for cases that were dismissed or complaints or cases that resulted in a violation conviction that had virtually nothing to do with the initial charge but look at all these other factors yes the he might still be within his discretion to deny the relief based on what he heard from the defendant himself and from the defendant's wife i mean not defendant the petitioner his wife and and any other evidence that he has before him but what what tipped the balance in this case and that's one of the reasons i showed some of the judge's pre hearing prejudicial remarks saying he was convicted assault assault assault when in fact no conviction here is for assault when he says that in his finding there were ten arrests for crimes of violence when i find maybe six arguable prime's of violence several assaults one resisting arrest i mean there may or may not be crimes of violence but none of them resulted in convictions and then again if you look at the bordering on decision in erik when making big primes that don't result in conviction yes but if most of them don't result in conviction that well i think maybe most crimes result in some kind of conviction but be that as it may or it's not fair to have a judge hold it against somebody when he didn't really have an opportunity or he did have an opportunity and six months earlier a couple of minutes rebuttal jurisdiction to consider the judge's wain of discretionary factors this court held that in when gang and in two thousand and eight which and what if there is a legal question as to whether it is permitted or appropriate to to consider  also happened to say that in noted that the i j a and it did not find fault in those considered arrested did not result in convictions so so there the court you know did not you may not have been raised  the charging documents there in the back of the record you actually have a pretty lengthy document that starts it page two seventy seven of the record that petitioner himself submitted as part of the case it was originally part of his petition for just one status he then later a adjust to that document to reflect i think was for further arrests that happened during proceedings themselves so he provided evidence of this you know beyond you know in hearsay documents i  to distance without belaboring the point some specific spots in the record where petitioner talked about some of this conduct you know a r two nineteen he met it you know pushing his wife probably about four times if you didn't  just know the criminal complaints is not enough to rely on is some evidence again we don't know from the ling yang case because it doesn't specify what the judge relied on there where the judge did consider arrests that did not result in convictions but you know if we had just a arrest reports you know only then that might run afoul of matter of eric when which you know questioned but did not per se perhaps it considering arrest report it expressed some concerns about it but did not say you cannot do this you know at all you know some other circuits of follow that were decision in braced at the circuit has not an artful all bar all the word from the border station they were pretty early in the proceedings that was back in the two thousand and eleven what ensued was about two and a half more years of proceedings a lot of continuance is granted in favor of the petitioner including for you know so he could handle some outstanding criminal complaints that he wanted to resolve first before his case the i j a and make sure he commentated his wife's desire to testify worked out a solution despite the existence of a protection order they she was able to testify and he made clear on the record i'm not going to let the attorneys you know badger you and i realize you're nervous and things like that so looking at the entirety of the record the government official there was no due process violation that you should look at whether or not there was a fair and full and fair proceeding we believe there was and for this reason the court should deny the petition for th mister on counsel's first point about the wrist the petitioner himself having provided the chart that is in the brief that show all the arrests and the outcome of them it was very clear in the earlier hearings that judge mulligan immigration judge mulligan insisted on getting all of that information presented to him so whether the defense did it or the government did it the judge wanted that and we're not ducking the fact that it was there what i'm basically relying is on the decision it was an on bank decision by the board in the same year as the thomas decision and i think the that what it does and  it really said we get a very very little way to arrest reports and it set kind of a sliding scale on the one hand you have a jury verdict or else a plea of guilty to the crime where presumably the defendant is allocute it in admitted the commission of whatever the crime is that you're discussing not some necessarily lesser crime and on the other hand you have unverified police reports that you have a third hand don't you because you have  testimony by the by the wife that she was a victim of domestic violence and you have his is admissions on the line but her her testimony was fairly minimal i mean she may have tried to minimize it but she was t petitioner in the in the application for adjustment of status she wanted him to stay she wanted him to be there to be the support of the three children including to stick child and you know all the factors that would have gone on the other side of that media but her testimony is her test she said which he said again i don't dispute that what she said could be used by the i g yes what i dispute is the arrest record the arrest reports which in this case are really complaints criminal court complaints those being used i mean even the i j a in his own decision this mention says there are eighteen arrests for a crime of violence where at the beginning of the hearing he said he wasn't even going to consider the two that were still pending which by the way did not result in any misdemeanor convictions either so again it's my request is is fairly narrow it is just that complaints arrest reports in cases that do not result in the conviction for the crime charged or the conviction of whatever the crime is that the i a wants to in effect hold against the petitioner that those should not be considered they're just not reliable enough and the fact that there are a lot of them here makes it a worse case for me but but the fact is that out of eighteen arrests there's only one misdemeanor conviction with no jail time and not a crime of violence and thank you ok thank you both their decision that's the last