about five points there are some point so i might be sort of a liar but i'm going to tear through the first four points and then two on my fifth point of my first point and if you agree with even one of these points then this case should be remanded to the board the first point is that the board of immigration appeals which are called the board of the b i a i fail to use the correct standard of proof  reviewing findings of facts their standard of proof is clear error they only have a choice with fact findings review to say there was a clear your where there was not a clear error but here we presented an error in testimony never existed we're going to take away the negative inference that the i j a repeatedly gave to it three times in his in her opinion and that is not one of their options under the regulation all but ok if i understand that what happened is the interpreter it's a question of that you presented something saying it wasn't like or love and the person said that they that you said that it was wrong that it could have been like but they said it didn't make life her life it could have been either and this was a paralegal in your office or something like that her in the office of the person representing this was a person fluent in english and flu in korean and she said that it it that the testimony in general was not interpreted in the proper way because it was printed word by word and not in the context or a way that korean is spoken and understood and also she didn't say like or love she said funds or love and if busy said that mr nolan you know love her and that she grew to love him or grew to be fond of him it's very different than like and the judge kept putting the like in quotes like she grew to like him with putting your quotes she liked him and then had quotes around the word like she put a tremendous amount of importance on  word that may have been translation mistranslated and my second point is that the proceedings were fundamentally unfair because of the fact that there was a faulty translation and i would also i determined that regardless of whether there was a mistranslation of whether she grew to live or to like mr nolan that there was sufficient evidence to support the i chase determination that the marriage was not in good faith you still have to get over that prong correct well yes but let me i'm going to go back from my plan well i know that the plan yes sometimes i think the plan here is to answer a question i know i know ok so what happens is that when a judge hears testimony and evidence they can ascribe very positive support you know going infinitely positive matter to you know what testimony is valued at or they can go extremely negative ok so here the judge went extremely negative but if the case was remanded perhaps instead of being neutral which the board just neutralized the testimony maybe the judge would have said wow this lady was credible and the judge particularly you know was if you of about the credibility she said she well you know was very earnest and very credible so if the judge had heard the correct  testimony through a proper interpreter then maybe it would have shot all the way up to the sky in terms of supporting everything else in the record and the the evidence that the board relied on you know the everything else would have been a shot in the shadows so that and that is why the case has to be remanded we don't know what evidence the immigration judge would have placed on it and it could have shifted everything it was leaving aside the question about the marriage well the clear error is in the fact that the judge it does hinge on translation because it has to do with the subjective mind set of miss you when she entered the marriage it's all about whether somebody entered the marriage for the right reasons and whether she grew to love him or whether she just liked him enough to marry him for a green card that that's all the difference in the world and the presumption against repeals by implication and here there was a situation where there was a regulation that used to make an expert testimony about whether there was mental cruelty a very key factor the only factor that the agency was supposed to rely on when they were deciding if somebody was the victim of a mental cruelty and then as the respondent pointed out their brief  this was found to be very difficult for some aliens who couldn't find psychologists that were fluent in their language or couldn't afford experts and so this is a statue came and made it it was supposed to make it easier for immigrants to to get relief when they were the victim of mental cruelty saying that the judge can consider any credible evidence but he the the intention and this is  case was that aliens should have a bolstered opportunity to prove their case not weakens opportunity and like in our peyser the respondent here is trying to use the statu someone that met with her for an hour that is it is correct and out and and she didn't interview the man mr no one correct and she decided based on hearing one side of the story that it was mental cruelty well yes i see that you glean those informations well i'm just saying what on the record what is the record say how long did she meet with her and did she interview all of the facts and the other side of the case you are correct however that was not the basis that the board or the immigration judge anywhere in the decision and there is a principle that  highly probative and potentially dispositive evidence needs to be discussed in an opinion and that was not done here and the things that you were mentioning scare me because under chain or e i don't believe the court is supposed to consider those factors which were introduced in the respondents brief but not anywhere in any of the decisions thank you very last we'll hear from a government good morning may please the court lisa damiano on behalf of the attorney general good morning to you all there are two primary issues before the court in this case both of which are equally dispositive of the claim and the first is whether the record compels reversal of the agency's determination that petitioner failed to meet her burden of proving that she and her ex husband entered into their marriage in good faith and the second issue is whether the record compels reversal of the agency's conclusion that petitioner failed to establish that her ex husband subjected her to extreme cruelty during their brief marriage well if you go to the first if you just jump to what counsel for the petitioner miss less sa about whether it was like or whether it was love or something along those lines why shouldn't we were man the case to the i j a to determine in the first instance without consideration to mistranslation whether the marriage wife's in good faith i think she's arguing a bleed over to how can we know what effect that had right so first of all petitioners argument starts on what i consider a mischaracterization of the record she is claiming that there's this intense negative inference from the judge's mentioning of the word like but what the decision actually says is that the judge mentions that petitioner testified that she liked nolan in the findings of fact and then in the analysis paragraph the judge discusses a lot of the evidence doesn't say oh well she said like but she needed to say loved judge didn't say she merely said that she liked him all the judge said was that these are the pieces of evidence presented in terms of the bona fides of the marriage and this was not sufficient to prove by a preponderance of the evidence that this marriage was entered into in good faith so in other words the judge referred to this testimony because it was the only testimony regarding the petitioner's intent with her relationship she drew if i meant to understand it correctly mr nolan could have a grade but she's seeking an exception because he you know he won't agree to that you know what what she wants i mean you  can remove the joint filing we're quite right so under the statute and regulations there are two ways to remove conditional permanent resident status and the first way is for the couple to jointly file the i seven fifty one petition but they cannot do so if their divorce and in other instances so in this case they were already divorced they were divorced less than a year after the marriage i'm sorry it was about a year after the marriage so they were unable to meet the statutory requirements to file the joint petition so it wasn't read whether he wanted to or not the under the regulations she would be unable to technically he could have come in and sad technically he could've come in and said well we thought it was going to work out i believe that that's what we thought but we just we weren't a match and so it wasn't a sham type marriage it was just it didn't work out yes your honor because petitioner was required to pursue a waiver of that  filing requirement he could have cooperated and provided her an affidavit in support of the marriage to help her prove the bona fides of the marriage instead in this record we have a letter from mr nolen contradicting everything that petitioner says so there's their sky no two prongs here but so we have the one whether the marriage was in good faith and then there's the other issue of extreme cold treat cruelty i guess everyone agrees that w wasn't a battered wife but it's at the extreme cruelty and it doesn't seem that there's a lot of definition for that there yes you're right there on how do we how do we factor that in well first of all the evidence has to compel contrary result here so this court has said it must affirm the agency decision unless the evidence is so compelling that no reasonable fact finder could conclude except as missy stated so there is the holder so basically the agency in this case the judge had to weigh the evidence and determine whether these events rose to the level of something extreme something that the violence against women act would want women to be protected from and not near on kindness as the hernandez case says there's no question that mr nolan on the facts of this record was difficult to live with was petulant as the immigration judge that at times but she has to discuss which is fairly unusual well the regulations also so you have to consider all evidence tendered and that was the most significant evidence she tendered yes your honor the regulation says that they must consider all of a dense all credible evidence filed in support of the claim and this judge stated that she considered all of the evidence submitted she stated it twice right but that's were poorly boilerplate stuff i mean we just don't know what  only we don't know what weight was placed on the testimony but the immigration judge and the agency is not required to discuss every piece of evidence they're not required to discuss each contention  but i agree with you on that but this is a central piece of their case that's that's a bit different well how do we know that they even can the user or the i g ever consider it except for the statement that we considered everything well we just the statement that that she's considered everything and then that the agency has a is is allowed the benefit of the doubt in terms of performing its duties competently there's no indication in here that the judge ignored the evidence instead the judge that twice that she looked at all of the evidence of record so i might consider that boiler but it's also the judge proclaiming that she did look at everything in this case and responded argues in her in our brief that this letter from valerie deming isn't the crucial or pivotal piece of evidence it is one piece of evidence to be weighed with all of the rest of the evidence including petitioners testimony and the other documents in the record the letter doesn't conclude that she was subjected to extreme cruelty the letter doesn't conclude that this counselor knew what the requirements were for a waiver  r even that she was considering the claim in the context of of the situation of the requirements for the waiver and also you know as your honor pointed out judge callahan the letter was produced after a one hour meeting months after the marriage would have been fine if he said i'm just counting this because it was a one hour meeting right brief so forth but we just don't know w who the letter i understand your honor we don't know we only know that the judge said she considered all of the evidence of record which is what's required of her and that she's entitled to a presumption that she perform the duties of her job appropriately  that that the i j a had determined that the marriage was in good faith based on all of this evidence and that it was the extreme cruelty which you put be pushing the same rock of health at the petitioner as here i mean if you have these facts  could go potentially either way would would you be able to say it compels another result if it had gone the other way no i mean the the fact that they could go either way is indicative of the fact that the evidence does not compel a concert oh is that your sort of assessment of this it could have gone either way it went one way and it doesn't compel a contrary result of respondent doesn't concede that it could have gone another way but she has suggested that there are other interpretations like for instance on the good faith marriage prong petitioners argue that the judge could have could have in her brief she says the judge could have interpreted the non co mingling of assets as something that older people might do in a second marriage that's a mere suggestion of what the evidence may have been interpreted to to to to be but here that evidence doesn't compel that finding and the petition didn't testify to that anyway how do you distinguish a demon you know your time is running out but damon is the toughest case that you have on the good faith marriage how do you distinguish this case from to human well i mean again damon looked at the case in terms of the substantial evidence sanders so said that the court must affirm the decision and once the evidence is so compelling the facts are pretty close and we reversed yes your honor in that case the judge ruled based on  usibilities so the judge that i find it implausible that a woman would a woman with two children would jump i'm sorry go ahead for yes a woman with two children would jump into a marriage that quickly without having a common cultural bond or common language so the judge was basing the decision on her own inferences of what a marriage should be in this case this is not what the judge did the judge a list of the evidence that petitioner provided and said this is not sufficient under the regulations to show a bona fide marriage by a preponderance of the evidence it was petitioners burden to show that the judge doesn't insert any of her own beliefs doesn't say a marriage should be this and i find it implausible the judge simply lists out the battle well first i want to point out that respondents said that no in the husband had been just petulant and the judge and the board use that kind of language he was the kind of person that his prior wife had to take out two orders of protection on and he violated the water protection and he had this history of mental cruelty which was not another factor that well it shows that the behavior that ms ye was claiming has a history that it was repeated and it makes it more likely to be true and that the evidence about the orders of protections is another piece of evidence like the expert report that may have been you know dispositive of the case which the immigration judge didn't mention according to the b i a president matter of s include clear and complete findings of fact that are supported by the record there was due process violation here based on not talking about important pieces of evidence and there was also due process because it was faulty translation not just of the like word but as the interpreter said you know the entire testimony was translated word by word instead of in context the most key thing is what is this person saying that's what the judge is judging about and that c