us i would say that the law of this circuit up until the supreme court decided guerrero last brianna would have been quite against you in that we regarded mixed questions of law in fact as within the sub part b jurisdiction stripping not within the sub part d then the supreme court though forces now just come along three and it could be that we need to rethink our understanding of the scope of subpart d d so we would have to be persuaded by you that there were  applications of legal standards to facts that are reviewable here and i would like to know what you think may be well that that is part of the dots i believe that's exactly what happened here and i think that if the court looks at the court's decision and marsh and marsh marge basically holds that it's arbitrary  you know that he came at some point during the year two thousand and as far as i can tell the immigration judge doesn't necessarily just believe him but as is his prerogative under the real i d act the immigration judge says i need some corroboration so we don't quite have a situation where we have yes evidence of two thousand and three versus nothing that would be a pretty easy ruling for mr t is bias but the problem is this statute does allow immigration judges to request further corroboration so what do you do with that well your hon or the the issue from from our standpoint is that st of all the testimony of the respondent has to have some work has to have some weight to it does for sure but what do you do with the fact that even though it has some weight the law allows the immigration judge to request corroboration now he could have come back and said you know i tried to go to my employer but because i was using an alias you know my employer refused to give me any records you know in other words he could make a showing that the corroboration wasn't available which the law also understands but i don't understand that he did that well  i believe that he did testify that that he had made attempts to acquire the information but the information was just not acquired and i think that's actually in and the transcript and that's the court which is i can examination there was his initial testimony was i can't mint and may or june of two thousand under cross examination from the chief counsel he admitted that he had been detained by customs and border patrol in july two thousand and then he returned to the country shortly after that so the corroboration would have been and the detention and his testimony was that he came in and he didn't leave the so the the the issue the issue then becomes you know having dealing with the real id when act when time let me quickly ask you about the extreme hardship to melanie the daughter because that too seemed to me to be very much a question of judgment you know how bad was her speech disorder stuttering and the immigration judge looks it the expert testimony mitten looks at the situation says it may not have been she's obviously in need of assistance but wasn't all that bad and so the immigration judge just sounds like such an exercise of judgment to me i don't see where we find a legal or constitutional issue in there well the actual decision by the immigration judge actually doesn't reference ms mithun's testimony at all the what what the immigration judges decision focuses on  for ms min testimony and some is mitten testified that she would have significant hard to if if her therapy with that continued and mr martinez baez testified that he would not be able to it quits right for the moment i will give you a little bit of rebuttal time and we'll move to mr lane thank you brief that i think guerrero must need more than a footnote because this court i think quite consistently with what the department of justice had urged had taken a very rigid approach to what was and fifty to a two d but now the supreme court has as broaden the scope of this authority and there are a number of things about the way both st the i jane and the board handled melanie situation that are quite disturbing to me but there is there is this legal standard extreme and it's at her heart hardship and then there are the underlying facts where i think the the board was asking in some sense the wrong question maybe melanie was doing fine when she was under daily treatment for her starring but the question wasn't that the question was how will she do without that treatment and you know the application of these facts to the legal stance what we're being asked obviously deferential review still i wouldn't doubt that for a nd but i'm not sure that that the ground has  girded not involved the discretionary determination of the agency we think that makes this different grammar also made it clear that it was involving the application of a legal standard to undisputed facts we don't have undisputed facts here we have a question of court has language i'm not sure it would actually i think there would still be you know real questions of fact it was the light red or green you know did you get thrown in prison in the middle of two thousand and seven or did you not i mean there are all kinds of factual questions that would be for the immigration judge to resolve supreme court is concerned you say less section two d for close judicial review of the board's determination so long as it announced the correct legal standard and that seems to me to leave some room for the resolution of factual issues and in this instance nobody doubts that melanie has a stutter the question is you know how  the requisite hardship standard but also simply that just not enough evidence was presented the immigration judge was pretty clear on this but why why didn't that why wasn't there a more thorough discussion of mittens opinions for example or why why weren't they more careful about saying you know that somebody may as i said be coping with the right kind of professional assistance but as soon as that assistance is stripped from her the and again this man's testimony is discussed in depth by the immigration judge and you've reached a number of conclusions based on that testimony for instance the severity of the condition because misdemeanor to self described states for petitioners daughter could travel if the shooters were moved to mexico south noted that he's not sure which option he would you would take with its children the immigration judge mentioned that it's just her daughter would remain in the united states there's may not be asleep presumably would not travel to mexico with titian her daughter the immigration judge that simply you know the petitioner noted i'm not sure of that treatments available in mexico i don't think it's provided by the public school system i don't know where i would look we didn't present evidence beyond that so we have these two options and then even if the daughter returned to mexico based on the immigration judges analysis of the testimony get from listening and then from petitioners self immigration judge concluded you know this condition is as as obviously it's affecting the daughter but it's not it doesn't rise to the exceptional extremely unusual hardship sticker which is a high standard which was i should note the titian burden to make now this may be have been a different case of this was the government's burden to prove otherwise but this was a statute puts it exclusively on the petitioner to make this case and the immigration judge says look you you simply didn't give me enough to make a decision here and the evidence you did get shows that it wasn't severe enough  the youngest of the children yes around her she was eight years old at the time the brief was written i'm actually not sure if he's out of her things and so we're going to have an eight year old stay in the united states by herself no your honor she's under the care of her mother she actually lives with her facts and the testimony to the law and it doesn't appear anywhere in that in that decision that the immigration judge did that and in fact if you review and i'm sure you  is essentially the i g is decision and our position is it was arbitrary and capricious thank you for your time thank you very much thanks to both counsel we will take this case one hundred and five men in the court will be in recess