this panel is not have the power to do that so i was i was really quite curious that the centerpiece of your argument is that we shouldn't follow one of our own precedent which will cases your honor under this court's precedent in the u s versus falkner this panel has the power to revisit a question that a previous one has decided based on histories or arguments that were not raised or addressed in a prior decision and i believe that this petition presents three such issues the first of all is whether court's opinion and hernando's which is ashcroft which all that the extreme cruelty language is reviewable on one hand and on the other hand this court's opinion martina's roselles in my view the best way to facilitate on bank review would be through an opinion that express country continuously for almost twenty years and that time they've managed to secure employment they've managed to purchase a home and they've been blessed with the birth of two of us citizen children and the year two thousand the immigration naturalization service initiated remove proceedings against them they were charged as being in the portable because they were here illegally obviously there was an argument to be made against that charge so they conceded that they would be portable and they filed an application for relief the only application that was available today that was available to someone who at that time had been here over ten years which is an application for cancellation of removal under the ironing that an applicant seeking cancellation removal must meet four requirements before we can even move into a discretionary decision whether to grant those four requirements are you must establish ten years of continuous presence you must establish ten years of good moral character you must show that you haven't been convicted of a crime that renders you and admissible or portable under relevant i a provisions and lastly you must show that your deportation will cause a qualifying relative exceptional and extremely unusual hardship that's a very very ambiguous definition it's a very very ambiguous statu constitutional claims as follows the due process clause of the fifth amendment applies to all persons inside the united states it doesn't matter if you're here illegally illegally if you're merely passing through the country that right include among the many fundamental rights included in due process is a fundamental right of family that includes a fundamental right of a parent to make a decision regarding the characters still in control of their children just this recent as two thousand and five fulfilled well again it's the deprivation of judicial review that we're really trying to focus on you have to i believe that if you accept the fact that the petitioners have a fundamental right as parents to raise their children here that  constitutional right to raise your family in the united states i don't believe that there is a published case that specifically holds that but at the same time there's no published case that says you don't have a fundamental right to raise your family here now obviously that argument that argument strikes me as so ambitious as to be untenable the better argument although i'm still having trouble with it is that the interest is so important even though it may not be a constitutional right to raise one's children in the united states or be put to the choice of leaving your children here in the united states where they may have better opportunities for educational other things and go home yourself or take them back to mexico your children will not have those opportunities that interest is so important that you have a constitutional right to do additional review of an agency determination that they don't satisfy the criteria set around the statute this is so i think it is easier to make the argument that they has to afford certain protections it's not necessary that entitle me but once congress decides to create a right to create an application he has to afford it every single due process right that it requires and i believe that in this case if you consider another  i'm what i'm trying to get your honor so essentially that if i can't talk about superintend in massachusetts i walked all the hill that case involved a prisoner who allegedly had been involved in some incident that caused the revocation of one hundred good time credits he had accrued one hundred days of good time credits and the state disciplinary board and the supervising warden both affirmed that decision there was a provision that said that you could not see judicial review of that decision he nonetheless no right to judicial review in that situation now ultimately the outcome was that at the supreme court level massachusetts that statute was cited to that apparently that provides for judicial review but i think that if you can on one hand hold it a prisoner who was only revoked one hundred is a good credit would have a due process right to to this review of the revocation of a hundred good time credits how can you in the same breath say that someone like the petitioners doesn't have a right that they have a statutory right not to be removed if they satisfy the criteria of unusual hardship in the statute and not necessarily on all the people all we're asking for is that the courts find that it would have jurisdiction at the very least to review that hardship interest that liberty interest then is something that triggers the due process clause not to be deprived of life liberty or property without due process of law which in your view then means to judicial review it possible you however consistent with a due process analysis for congress to say here is your right in the sense of the criteria that need to be satisfied but as part of the definition of their right congress  the satisfaction of that criteria or not is to be finally determined by the agency there is to say that's part of the description of the right i understand but i think that in this new day and age after the had available a hideous petition that then you could challenge the agency's decision for abuse of discretion you could make the argument that their determination that the hardship standard was not made could be with either arbitrary irrational or contrary to law cases cited by the government  but here's the here's the thing i believe that when you talk about this harsh of analysis i mean really it really is a question of law it's a question of whether or not these undisputed facts apply to this question of law and i think you also have to remember this is the same  discretion its own dishonesty asian for the attorney general because we have to remember that even if we show those four requirements even if we can convince the agency that the hardship standard has been met doesn't guarantee that they're going to be granted relief determination is a subjective discretionary judgment that is under view both pursuant to section eight to be the real i d act does not change the fact that the determination is still a subjective discretionary determination i mean from judicial review in this course decision in ramadan does not change the fact that the hardship determination is still discretionary determination you know i have trouble with the tension between your argument and ramadan and it ma my problem is with ramadan well with what i think is likely to happen in this case but i have to say that an argument that says here are your facts here's the standard application of a lot of facts so it's this unusual hardship and so on which i won't i'm not sure i want to call it ambiguous but i'll call it a standard that's necessarily somewhat imprecise just because of the nature of the words and the nature of the judgment but it is a legal standard and it's a legal standard that the media is applying to these cases and i'm having trouble seeing how that is discretion except by sort of a play on words it may be that congress has told us that it's not judicially reviewable but it doesn't strike me as just using the ordinary vocabulary of lawyers it does not strike me as an exercise of discretion it strikes me as i'm application of a legal standard the fact that your response to that i think disc such discretionary determinations are different from the type of mixed long fact questions that the court went on to review and ramadan the court explicitly stated before turning to the specifics of ramadan is clean we know that this case does not to restore jurisdiction over discretionary questions and martinez sources also recognizes the jurisprudential tradition of recognizing the hardship determination as a discretionary determination that's thank you i just want to speak briefly to the issue of unusualness that you're on a raised i believe that this court can apply unusual as part of the statutory language of exceptional and extremely unusual hardship i can draw on the b s expertise in determining what unusual means this court can also draw in the d a s expertise in determining that the hardship question is a question of law and i gather your argument is basically that once the league has decided enough cases applying the standard it has then given us an interpretation of what those words mean and then all we need to do is read their decisions because then that tells us what the standard yes yes that's correct and how many of those decisions we have to read we got three published  doesn't make them discretionary and it's it's a courts duty in the end to interpret and apply the language thank you thank you