and two by failing to review for clear error the i g is factual findings that mister was committed to resolving his problems with alcohol and had the community support to do so did you participate in the specifically said took took the analysis that you're calling the predicted finding was it appears in the i g s discretion analysis the ib i j labeled the analysis part of it made a reference here she made a reference early on to this to these the alcohol and criminal history if you and set out and i'm coming back to that later and later was an explicit analysis of the discretion issue which the cia is clearly entitle to review they know about so where where is the obvious breach of the appropriate standard review which would be i of course recited correctly at the start well this court looks not what to the b i a says it does but what the two testimony that he was committed to address his alcohol problem that he refused to address for so long until he finally got in a very serious accident that all those that that factual recitation the public record by the i j it was not was not rejected by the b i it was the i js this is the way i'm reading it and you tell me why i'm wrong this was the this g there found that mr europe had sought enrollment in a treatment program and was committed to resolving his problems with alcohol that he has expressed genuine remorse for his actions and he understands the gravity of what he has done it then goes on on and thirty one to discuss how that commitment to resolving his problems with alcohol was bolstered by the support of his community and this one th preamble to what you're now referring to yes the very st line on one hundred and thirty that brings us to the last remaining issue in this case as to discretion the court most weigh positive factors and negative factors that set and then drinking and so while this this portion is in the discretionary portion they are still findings of fact that the i g is using when weighing those discretionary just sort of reject th made no explicit did not use the word rehabilitation no but in this particular case rehabilitation really boils down to a binary question of whether or not mr euro was committed to resolving h problems with alcohol and whether or not he would in fact drink and drive again the distance but but to say that that is countered with the b i a statement the respondent has not shown that he has be rehabilitated to say that finding a fact that counters the i j is to say it is a fact and i think that's also a problem in your argument as to whether or not that is a factual determination or is that a discretionary conclusion based on all of the facts that the i g found well your honor we haven't been able to find any controlling this because i might i clarify might not might confuse instead because that's i'm good at but but if you think about a finding of fact i get where you say the finding of fact is he is committed to maintaining sobriety right that minute sounds like a fact finding i've listed all the evidence and he's i think committed but the nd piece of that that he's not going to drink and drive again that seems like a discretionary application of the previous finding to just world view because it's sort of predictive of what the suffers from bipolar syndrome he doesn't take his medications the predictive finding of fact would be he's likely to be compensate and in an compensated state he is a risk to the community right those are kind of predictive facts and you could  s a in rejected that finding by saying you know evidence that there would be a likelihood of separation so here when we're talking about the likelihood of mr you're drinking in driving again it's that same predictive finding rehabilitation seems like a moment in time i feel that based on the facts that had have been found in his experiences at this moment he appears to be rehabilitated well rehabilitation certainly viewing it as a point in time but the i j a instead is looking towards the future and as part of this as up a process of mr rehabilitation and his ability to his the community novo with no citation to an a circuit case that we ever addressed this distinction between fact faction predicted facts to my own knowledge your honor no not specifically the way that those so that you're they had to obey in the circuit well it's the b a s on precedent and that the agency must follow its own president and what if you were weird when did they when did they follow this rule and a circuit case they don't but they don't have it they deal with they deal with with more greater and lesser circuit court hostility all over the country all the time and they don't have to accept one circuits criticism or six circuits criticism in a case it arises in a circuit that has lived up to as adopted the criticism so i question whether you're talking about a clear law that that is to verify just to make sure that it says presidential on the top i just i don't want to say that i don't have it right here in front of me but if your honour's don't have any further questions for me i'd like to reserve the remainder of my time for a little thank you thank you very arthur raid on behalf of the respondent attorney general and please the court in this case we have two petitions for review basically they were consolidated because the initial petition challenge t they said based on our ultimate exercise of agency discretion we reverse and that was disorder issue in the immigration appeal before the b i what about  to a couple of statements from two thousand and sixteen that i don't think the i j a referenced this this idea of whether or not he went to treatment voluntarily and whether whether it's voluntary if your doctor referred you to the treatment or whether that makes it involuntary i am friends and also they made a conclusion that he had in two thousand and six not made a decision to stop drinking are those in there it was exactly the same scenario the court was faced with the board pointing out evidence that the immigration judge didn't and what the court said well if it was being done as part and parcel of discretionary decision then the board is entitled to review the record is that that's still not fact finding in even those two i think you could it's not it's not sort of  a fact that these happened in two thousand and sixteen that sort of uncontrovertible but it seems to me both of those statements one any good add the could could describe the situation differently right whether that could have been a truly voluntary submission to treatment or you could argue the opposite no it was pretty involuntary because the doctor was telling me he had to do it so there's an argument on both side is that the kind of fact finding that this case was talking about or that is really permissible and well i think would that case was talking about wallace is that the agency the board should be entitled to look at the whole record should be able to examine the entire record because otherwise it's stuck in a position where if the g doesn't mention a number of convictions or things like that then that are you know would the courts and say well done the board is not entitled to look at those things because the i g didn't mention them in his decision  obviously the board can look at the full record to determine that the i j a is finding based on an inadequate explant coverage of the record was clearly erroneous us wrong you know what was the standard view applied in walls well in wallace what they said is we and i'm quoting here on page one hundred and forty one banner review that's the only issue we're talking about if the otherwise this is otherwise i agree with you we have no jurisdiction over the discretionary aspect of this appeal if we get so just all we're talking about is whether the b s a applied an erroneous standard of review we have taken is that when the board is in the arena of the ultimate discretion or review not whether or not it's meeting statutory elements but now the agency just saying as well as our discretion now when we look at the entire record does when we weigh the evidence of equities versus the negative factors in the case and what do we see well the i g obviously considered those factors and found them that they leaned one way the board walked out and said no he leaned the other way that is exactly the kind of things that the statute does want the court to review because it's a discretionary evaluation you're getting into the facts of the record that the agency may be conflicted over but those are not necessarily finding the facts because a number of the board never rejected any of the findings of fact exude do you what's your view on whether the i j a made any conclusion about rehabilitation we don't think he did what what the i g did was that he made in his discretion determination a simple statement that is he at that point of snapshot in time as he looked at the evidence the idea was looking at it said he appears committed to resolving his issues with alcohol at that time so does that may mean that the b s a made its own factual finding about rehabilitation that  almost a factual conclusion based on a bunch of facts how do we look at well i think they're the course looked at in the sense that the way that the board did this appeal this was an appeal by the d h s s of a grant o d h s s appeal based on two grounds and they said we believe the immigration judge occurred in the way he weighed the criminal background and the way that they could read the rehabilitation evidence so because there were a bunch  of statements as well summaries medical summaries about whether or not this the son but you know what when he went through alcohol rehabilitation how successful he was how do we know what's included in that and i may be asking questions we don't know the answer to but if you could talk about rehabilitation you could say it's limited to the sort of things you're talking about which is his commitment to sobriety his entrance into treatment and the specific support particular people have of him in that endeavor but does it also include all of the other positive characteristics or features of his life that the i j a found how big is rehabilitation and would you include the fact that he's got a family supportive or not but he's got a good family these close to the church the job how far do we go with this idea of rehabilitation you don't because that's part of the agency's discretion and that's why the courts should not involve itself and that's why the statute shields this particular terminations from the court what what i'm talking about is that when you have a criminal background and that criminal background is based on drinking and driving and committing driving offenses there is going to necessarily be some in our brief what they found is that they may make statements in the label things differently whether it's a negative factor whether it's a positive or maybe even a neutral factor but that's not fact finding  finding that is that has to be made well their words if you take take at the typical convention against torture claim where the question is if this person is is was removed to the country and issue will the government be able to protect him or her from for trial from torture well that's a predictive finding that is that is essential to applying the convention of tortured in particular case death doesn't has to be in a way of facts that might be relevant to a rehabilitation finding against negative facts am i missing something there no you are because most of the case that talk about predict the  is there is a clear probability of torture in the future not this here with the i g was looking at as at the base of the evidence this was not a predictive finding but our historical record  m the judge doesn't show efforts of rehabilitation not that the judge was saying ah i believe that in the future he'll never drink in iraq i believe he will stop drinking well that's not what the judge was doing we will consider them also and we don't find support for rehabilitation in the summary what the judge looked at was whether or not the rehabilitation actually occurred at dot specific talk to two because he's making a discussion finding specific tom and so when the board said well what's reviewed that finding and whether or not at that specific time this petitioner showed rehabilitation and they said no the record shows that he doesn't because he based on the summaries did not make a commitment to stop drinking even and then nine months later but but the rehab the rehabilitation finding with was with respect to the the sincerity of a commitment to do better in the future which i suspect ninety eight percent of the dui offenders around the country would would make a similar commitment and more about that or more than half of them would not live up to yes sure i mean but that's standard it is like i support partial these kinds of cases it's not a completed rehabilitation like he completed a drug  off a factual finding about rehabilitation but this is not one of those cases there was no expert here that said this particular petitioner based on whatever i opine that this particular petitioner is rehabilitated from huge one a factual finding on rehabilitation versus the discretionary use of rehabilitation how are the course of posted to to figure out which one the the immigration courts are using it seems like that should be a different word maybe  said give me an example of a situation where it would be fact fact finding rehabilitation that then i'm assuming you're saying would then be subject to the clearly erroneous standard by the be a what's what's an example of that  them clearly erroneous could then say all right take all the ideas findings there was a finding from this expert that it was he's rehabilitated but we think based in the exercise of our discretion we think the i j a made a decision that some big our rehabilitation has not happened and therefore deny really is that is that what you're saying yeah as long as they adopt out if it were a defector to have it right they just say the judge gave too much weight to the find basically what you're saying is if there's a hearing and at the end of the hearing the i j a says i find that the petitioner has been clean sober employed law abiding for the last seven years is rehabilitated that that's a fact that that then is of pure finding of fact as opposed to the good intentions i think he's doing the right things right now he's got support to communit nothing but more cumulative evidence of rehabilitation and this court has already said that when you have a jurisdictional bar you cannot circumvent the jurisdictional bar i just found which are open with more discretionary evidence subject of cour i'd like to hammer home the error that was made here regardless of this court's view of rehabilitation the board engaged in impermissible fact finding to support its determination that mr yoo rooty had not shown that he was rehabilitated specifically at page forty four of the administrative record what forty four your honor of the administrative record th last page of the board's decision the top of the last paragraph the board states although the respondent testified that he voluntarily sought enrollment in a thirteen week alcohol treatment program in two thousand and sixteen this appears to be contradicted by the discharge summary from the program which indicates that the program was recommended to the respondent by his doctor who was concerned about the impact of respondents alcohol use on his health and quote your honour's the court should be the board is cherry picking a line from the discharge summary to di expressed credible testimony that he sought that treatment voluntarily it's also worth noting that at the critical and where where and the  s opinion was was that specific testimony credited nd so if i may just point out that the that the board its throughout its decision site you see here you're conflating two distinct question seems to me one is one is whether they whether they be  law when it makes one it makes factual determinations based on the administrative record as a whole on questions the agitated not address rather a point the court document drawing fact finding facts from a based on a document which the immigration judge did not make those findings of fact but your honor i think the important point is that the regulation  and three dollars d free the regulation says that the board cannot make findings of fact in the course of deciding its appeal it cannot act as the trier of fact and when it went into the factual the the impermissible fact finding here turning to nd point governments are argument about jurisdiction i trust this court sees that this court has jurisdiction for the