that circuits are certainly conflicting internally and in between each other as two different approaches to this but the seven circuits approach seems to be rooted in a statute there statutory or regulatory right not not not just an abstract due process under the th amendment so which are you asking us to to embrace here and if it is the statutory or regulatory rights what we're do we find that good and when it comes to the privilege not the right to have counsel in these sorts of hearing fundamental right to a fair hearing that seems like a different approach that certainly some circuits have adopted and the seven circuits which tells us to look for  regulatory anchor and as a result of that also concludes that prejudice is not something that we should that we have jurisdiction to examine  it they're just putting it on the back burner saying let's st look at this action and the regulatory scheme and then we will see if we need to go to the constitution as to prejudice is that will were not exhausted right they were not brought before the be and the other two have a problem as are examining it with prejudice so tell me if you would think it piggybacks on to judge this trip as question right so you have you have these regulatory and statutory problems that you say there are due process issues right because there are due process issues past exhaustion because those issues were brought to the beach but in a way on his own with them getting to play example what they were like for example that efficient filings i have i think that the i don't think i no making an argument that with certain information or forms correctly completed that there's a reasonable probability that the outcome of the proceedings would be different i think that the violation of fundamental statutory or constitutional right you know your reasoning violations of the manual regulations are are you right the present evidence if you will and that interest is that the jury is what i'm saying so we don't have to go further if the court chooses not to expand it to a procedural due process let's go back to the notion prejudice on the interpreter issue right there's a certain part of the proceeding that goes on without the interpreter in reading the papers from both sides that portion of the transcript doesn't get into what i would say is the most important from your post specter from your client's perspective that is the testimony  claims is the interpreter and the interpreter issue let's call it constitutes a constitutional violation so one of the questions we're asking is what's the prejudice my question to you when you in essence all of the information that your client was hoping to get to the i j prejudice would be maybe i said in my language the sky is blue and the interpreter said the sky is green right that would near problematic but we don't that's  reflects something entirely different that would be an example of showing the of purges the the entire interpreter issue doesn't reflect what my client said that's not your argument so i'm asking you in the absence of something like that what's the prejudice well there are many instances in there trying to interpret it section of the track that the lawyers issue that the lawyer didn't present the case where he should have presented it and the lawyer didn't present the evidence that he should have presented that's very different than the interpreter issue is that it is different you and i agree with that but i am also saying something and there's nothing on the record he said hey this interpreters not accurate that is true you and i cannot speak for him why he didn't have days because like maybe because the interpretation was good maybe but i cannot we cannot  we make of the fact that the nature of the relief here cancellation is discretionary and we have an alternative on the basis of discretion a number of circuits have said hernandez case on the on the one side and a dual and exam on the other and that there is some tension between the notion that  circumstance right so i thought what you were going to say is because i'm doing to them acknowledge that it exists in the asylum context and that's an instance of discretionary who believe that because cancellation is similarly discretionary relief that whatever due process notion that rd circuit has recognized in the silent it should similarly recognize it and cancellation attention is hernandez seems to conflict with that and i'm asking you to walk us through how we deal with that tension and you attempted to talk about one side of the tension but not the other so what do you what  of the immigration judge here making the alternative holding as a matter of discretion that he would feel that really what i'm sorry debility question but in the alternative the immigration judge also held that as a matter of his own discretion that he would deny that really does that change the calculus i'm not saying that this is i have to will one way or not the past saying that the hearing itself needs to be fair but even then just when the immigration judge was was addressing the issue of discretion he was looking at things like the nature of the offense repeated violations of immigration coming back after voluntary departure and  it's more likely outcome would not be different i think that the be rankly i we hope and pray that they can see it is in just reminded so it can be reviewed by the good morning may please the court my name is kristen whittaker and i'm here on behalf of the attorney general of the united states this court should in part dismissed the petition for review and in part deny it the court to dismiss the petition for review in part because it apply for asylum it's generally considered that you're applying for withholding of removal at the same time and because withholding of removal is a mandatory form of relief it's different than asylum it's not discretionary so that's where that distinction  court may consider that they can consider due process rights or etc after asylum but not for cancellation of them as long as she is saying that you don't think that there is  along with withholding and that's the distinction that we should focus on i think so in that circumstance obviously with the cancellation of removal there's also the additional step that congress has set it aside as something that is discretionary and which this  that that's not a political when it comes to asylum but by regulation when you apply for asylum you are generally applying for withholding removal at the same time so i think that is the main distinction with that case early sets the distinction the court can rely on so cancellation of removal you cannot have a cognize a cognizable protected liberty interest or property interest in that form of relief it's completely discretionary and that's in line with supreme court cases and it's discretionary you don't have  protected liberty interest in the granting of the relief or in the means i think that respectfully is what counsel was a alluding to saying that there is an interest in the process but as the supreme court has held with the paro cases that you don't have a liberty interest in the means as well and that's why the petitioner cannot assert a constitutional due process claim in this case but what about the statute and the statute still protects rights the right to reasonably present your evidence so if you look at the ineffective assistance of counsel claim you can't potentially argue you know i was not provided with a reasonable opportunity to present i have it and that's w of the administrative one like the th circuit has held what why don't we have there both the statutory and regulatory rights or are you conceding that we we  but there's no discussion in that opinion as to the god humans were submitted in support of the ice equally and that's information that i didn't have so they didn't explicitly go into the documents but they talked about  and in fact he had no i think that what the board is trying to say is that he has not established how that would have prejudiced him is not a it's not and i'm going the fact that there have been what additional corroboration who were submitted that would have  are you saying that that that new evidence number one was considered and number two if the even if the appropriate standard of reasonable likelihood had been applied there'd be no and just one thing because if that's what you're saying then then it's seems like there's a sea change in the quantum and quality of the evidence forms within the new evidence and if the correct legal standard had been followed the threshold right goes to hell so if there is more evidence in the threshold goes down how do we come to the same conclusion because what the board is indicating is that the immigration judge found that there was no hardship looking at factors such as there are schools of lesser quality or medical resources of lesser quality simply because they provide additional evidence of hardship say sea change so what i'm not getting is when you look at this with no exactitude from the b that they took it into account and come to the same conclusion when the appropriate applied there on standard and if i may think so although the board said would have impacted the case they cited to matter of calais how that would likely change the results so again although the language is imprecise i still think that the would likely change by using the word would have impacted their not applying for instance in the case that the court bought our attention to the more likely than not they didn't apply that much higher standard and it's different from the th circuit case where the th circuit said there was an  would have changed the outcome of the case here they would have impacted the case and then again citing to coolly so i don't think that the standard is necessarily wrong i think that the board persist using imprecise language that it's not the c decision but i do believe that they did review the evidence and i know that the court feels that there is an additional evidence a lot of additional evidence but again it goes to the core of the hardship and the you know the eldest son having speech his decisions to be tethered to the hardship and maybe a rd of the hardship is present i think that it's more than a rd you're saying in comparison the children were hardly discus that would occur especially after what had happened to their father the evidence that was presented at the time of the hearing it's not it's not significantly different there is no where to go but get security yes i understand but i still would argue that prejudice has not been established that the board reviewed the evidence and still found that there was not a reasonable likelihood that the outcome of the case would have changed but look to see that we accept that the board we have jurisdiction then and you're telling us that it's clear on the face of this opinion that the board took account of the new evidence in denying the motion to one man to reopen  them that would seem to be to say that the disposition would need to be that of that is we would need to be sending it back with directions to have it further sent back to the i j a her new hearing right i don't i wouldn't agree with i still think that it should be sent back to the board again because it's going into that ultimate conclusion is into an area that congress has explicitly told the court last jurisdiction to review so it should still send it back to the board if it feels that the board did not review the evidence or applied the wrong standard and indicate that to the board so that the board can then relay that information confirming so that again if if we let's look again at the same evidence you're saying it already considered i don't really have anything to say to that other than i still think that it should go back to the board that i don't think that the i immigration judge should reevaluate this claim and go through everything all the evidence has been presented if the court disagrees with the board's determination and the court can tell the board what it needs to do is it really the government's position that there is no right to  a fundamentally fair hearing in immigration proceedings it is not the government's position that there is not a star i see that my time has expired reacting it is not the government's position that there is no fundamental right it's that simply the due process clause does not apply in this particular circumstance but that the statute protects certain rights including the right to recently present evidence which does not conflict with the right a fundamental right to a fair hearing or trial well is there a fundamental right to a fair hearing outside of what is specifically provided in the regulations and statute i'm outside of not that i'm aware of i i think that it still again and again the constitution doesn't apply what's the difference in your mind between what you think statutorily and regulatory on the one hand and for a fair hearing and that's from the due process clause but a right is still protected under the statute that white is still protect a right a right to some not process not necessarily for process that evidence have you have a reasonable opportunity to present evidence if you have in fact systems it depends on the circumstances of the ineffective assistance of counsel claim say if they allege that counsel was ineffective for failing to island or withholding removal it was based on general gang violence so in to put in particular circumstances it might be an issue but in this particular case it is not would be prejudicial he didn't present evidence tethered to the hardships would cause him to three children i don't think that is prejudicial in this circumstance because again the board considered it and found that it did not meet it didn't show the cancellation of room isn't that we've talked about so you think you read the opinion to be i considered this evidence and application so even if the court is find some issues with it st up there they don't have jurors or the court doesn't have jurisdiction because the discretionary determination then also there is the prejudicial outcome so the court then can look and have jurisdiction over the back aspect of the claim if that makes sense that they have to be separate what's the what's your answer to judge krantzes question because i thought her question was that the heart of the case which is and actually judges for opposes what is there any circumstance in which you would have knowledge that we have jurisdiction over this scenario because you the regulations you just simply cannot apply the th amendment the due process cause so it's just narrowing the review to the statue and the regulations many of which by the way allegations of error were not exhausted and talked about a strong applicant having the child with serious health issues or compelling special needs so i think with matter of again it the board even recognizes that that is in the th amendment the due process errors to the council and say specifically what was wrong in that circumstance but again if the court disagrees if they find that the board has created a framework with matter of mozart or still thinks it's appropriate to follow the well if there is a legal error then yes the court can come in and have jurisdiction but if it's just the discretionary determination and there is no legal error then the congress has explicitly stated that this court lacks jurisdiction the term addition of i c a legal analysis the legal analysis again would go to whether the statue was violated you can't have a colorful constitutional claim in this case you just cannot go to the th amendment you can't go to the due process cause but if you want to find the legal it is a legal analysis that is a question of law again you would go to you don't got it was analysis and just looking at the statue what is discretionary about compliance with  its the reason why the th amendment is not a play is because the supreme court has determined that the th amendment does not apply if there is not a cognizable liberty interest or property interest in this is a political i think a scene again it goes to the statue and of the statute does not conflict with the right to a fundamental hearing if the statutes consonant with the constitution why wouldn't we say that just as the statute says constitution requires the say perhaps it is a matter of semantics but because the supreme court has also held that the due process clause is not apply it is just looking at the statute you could say the statute is the same level as the constitution but again it is tailoring it to the statute and recognizing that there is no right to specific process and determining from there whether there had been precious if the court finds that to affirm would we need to conclude that the right to a reasonable opportunity to present your evidence does not include the right to counsel no i don't think that you need to do that i think that you can go into this determination and find that the board was correct that prejudice was not established you don't have to go into it that that's the nature of the claim raised then we have to review the claim to determine one way or the other whether there was a reasonable opportunity to present evidence right and yes if the nature of it is an ineffective assistance claim then we're looking at deficiency which i admit i was asking before i don't see the government anywhere contesting deficiency and practice and both of those are components of the infective systems claim which it sounds like the government   extensive additional evidence that went to the the conditions of the children speech delays special needs p t s d depression because i think that the additional evidence does not change the analysis that the board was reasonable in determining that the outcome there was not a reasonable likelihood that the outcome would have changed simply because there is additional evidence of say speech delay  doesn't change the evidence that the schools in mexico are maybe not at the same level as the united states or that the medical because of the children's hardships and the idea was clear this is what he was going to focus on me yes but i still does it i will because the immigration judge looked at things like speech delay with the eldest son and there the access to schools and access to medical resources it could potentially be just additional problem ration constitution off the table because of the supreme court precedent that she alluded to and that because if you look at it started to really a regulator only there is a fundamental right to a fair hearing and that would give you the possibility for all the belief use seek or that or at least for the issues that you've put on the table today to be reviewed do you agree with that principle that you