honors good morning your honor is the essence of this case is the absence of facts the b i adoption affirms with comment the decision of the immigration judge however neither decision applies the correct legal standard this court does have jurisdiction to review whether or not that correct legal standard was used in rendering his determination regarding whether or not the petitioner had been convicted of a particularly serious crime circumstances would warrant it to not be a particularly serious crime immigration judge did not apply practical standard and he failed to apply those six back additionally with regards to the two twelve  waiver the immigration judge and later the board of immigration appeals in adopting in affirming that decision also did not apply the correct legal standard the correct legal standard in determining whether or not the petitioner was eligible for two twelve c waiver is articulated in matter or in the immigration judge and the board of immigration appeals in adopting affirming that decision chose instead to rely upon the fact that the petitioner had previously received to toss the way for the oral decision of the immigration judge which was adopted and affirmed by the board of immigration appeals is seven pages almost three and a half of those pages are devoted to a discussion of the judge's decision i mean i gauge decision your honor you can through the fact the board of immigration appeals choose chooses to adopt an affirmative that's incorporating it in their decision additionally your honor the board of immigration hour in analyzing the decision of immigration judge although they adopt an affirm it they also throw in their own improper fact finding saying that the petitioner would have a negative impact on the community the immigration judge mentions that nowhere in his decision your honor this case needs to be remanded for further fact finding and proper legal analysis of the facts in the record returning to the two trial see waiver application although the immigration judge devoted substantial time to the prior analysis conducted by his predecessor on and granting the first two trial c waiver there was no analysis of all of the measurement factors that must and in the introductory paragraph says i have to consider all of the factors including and then list many many factors and then goes on as you say not necessarily go back to those but don't we process it may then he lists them but then he fails to consider them later on his decision your honor so i would argue that although he does briefly mention the case he doesn't conduct the proper analysis in rendering his or additionally we have this a similar issue going on with the particularly serious crime analysis the immigration judge does not go beyond the drug trafficking offense to look at the extraordinary circumstances which surround it he simply dismisses it and says this is a particularly serious crime he doesn't conduct his analysis under and a while as to whether or not there would be extraordinary factors that would mitigate and be taken into account making that determination additionally your honour's the immigration judge fails to properly consider whether or not the petitioner was eligible for deferral of removal under the convention against torture he simply states that it's unlikely he would be tortured if he's returned to mexico he conducts conducts no analysis of page declaration was specific to him your honor in addition to the fact that the evidence presented although general in nature with regard to back on documentation did establish the likelihood of torture upon return to mexico the i j a and his  apologies runners immigration judge in his decision conducted no one alice's of that documentation conducted no analysis of that declaration didn't even properly consider it as he should've in support of respondents applications for removal finally your honour's the immigration judge also applied the incorrect legal standard and violated the petitioners due process rights in compelling him to go forward with almost two hours worth of testimony while he was in severe pain and had surgery the day before on the finger on his right hand how requiring an individual to present their case and present testimony under those conditions is clearly a violation of due process in fact at the later hearing september fourth two thousand and three when questioned the petitioner did express that he felt that he was unable to convey his testimony and tell his story the way he needed to because he was in severe pain and still feeling some of the effects of the anesthesia from the surgery on the previous day at the beginning of the aug twelfth hearing petitioner's counsel moved for a continuance which was denied by the immigration judge that continuance should have been granted in light of the fact that the petitioner was standing in the courtroom with an injured finger having can had surgery the day before where is the continuation issue ever raised before the board it was your honor on the motion to reconsider having raised on a motion to reconsider it was raised before the board and therefore the petitioner did indeed exhaust his administrative remedies therefore that issue was properly before this court today in addition your honour's a further weighing factor in considering whether or not the exhaustion of the administrators remedies applies has to be the fact that the right to due process is such an important fundamental right in proceedings that the fact that he raised it at all to administrative level and the fact that he did properly raise it in a timely motion to aggravated zone for his judge trafficking crime and as the government has thoroughly briefed he has not raised the colorable legal issue or constitutional claim all of the purported legal questions  involving whether the immigration judge has applied the correct legal standard regarding the twelve c waiver regarding particularly serious crimes terminations and also regarding regarding the due process claim and denial  continuance in this issue they're all premised on very apparent mis characterizations in the record and just a simple review of the record itself reveals that the correct legal standards are applied and the immigration judge and board both went through all of the relevant factors and as for the continuance a continuance was granted as soon as one was requested in the case so this really does come down to in counsel's own words fact finding and it comes down to her request to remain for additional fact finding because she believes that the facts were not regarding the two twelve c occasion as your honor noted the immigration judge explicitly stated that he must apply a matter of merit in weighing whether or not as a matter of discretion he could grant or deny the application and the immigration judge explicitly stated that he considered family ties length of residence and hardship to all of his family members children grandchildren etc and that's  reflected also in addition to page fifty three fifty four the record on page fifty seven and the vi as well noted that he does have numerous positive equity however the negative outweigh the positives equities that is a weight of evidence issue the board and id are clearly articulated that they apply the correct standard they just they simply did not come to the decision that too sure would have won it therefore there is no legal question before th and even if the court determined that there was the idea in the board's decision suppose amply supported that they apply the correct standard regarding the particularly serious crime determination same scenario here the applicable law in this case because the drug trafficking fence is matter of y l as counsel pointed out and in that case the attorney general himself rendered a decision overruling the board of immigration appeals and the attorney general default interpretation is that a drug trafficking offense is a particularly serious crime that is the default therefore in order to overcome that a petitioner has the burden of needing thresholds criteria six of them and then on top of those six threshold criteria then demonstrating other unusual and extraordinary circumstances therefore we have a presumption that this is a particularly serious crime that presumption was properly applied by the immigration judge and board the burden shifts to the to the alien and to demonstrate that he should not have that prisms for pi that he can overcome that he presented no evidence as the record says it is clear he didn't want to testify about as withholding of removal applications under the i a e a are withholding that's where the  particularly serious crime determination is a peculiar he explicitly chose not to present testimony waive his right to testify and stated that he rested on the representations in his application and he was well aware of homeland security's position trying to terminate those applications based on particularly serious crimes he was aware that in advance of his immigration hearing therefore he was he was on notice that this was an issue that he needed to overcome in his receiving and he did not testify at all to show how he could overcome a presumption that is aggravated felony crimes were particularly serious crime barring him from removal under both the act and cat therefore again the immigration judge and board apply the crack legal standard we don't have a legal issue here there's no jurisdiction in th the government intend you also don't have jurisdiction to even consider it and while we recognize that this court has rendered a decision in morality that has stated that if if the agency has not denied tat relief based on the criminal underlying criminal ground then this court has jurisdiction however in morality the court did not take into account the differences between and withholding of removal under cat because withholding of removal under cat does have that particularly serious crimes are just like withholding under the act they're the same in that regard deferral does not have any such bar so a ground of removes ability premised on a criminal conviction like we have here with an aggravated felony that can never be applied to deny difference of removal and this court has not considered that in morality and in morality it was extending its analysis in moonwalk oh who where there because a daily wasn't found removable based on the crime this court found jurisdiction over the withholding morales extended that and said not only do they have to be found removable based on the crime but they have to have that crime applied against them to deny the applications for deferral in the polled ng but again ross didn't consider that there's couldn't establish a likelihood of torture a factual determination this court lacks jurisdiction also over the deferral of removal application but in any event if this court finds jurisdiction over that application as the government state in its brief the immigration judge articulated that he considered it as does the board and found that he didn't meet his burden of stabbing a likelihood of torture and he gave that application as much attention and most of those materials did not pertain to him specifically very general country conditions general he didn't have any examples of people he personally knew or any jumbles of him never having harmed so he couldn't meet that very high bur and as discussed earlier on the continuance issue this court has no jurisdiction also over that because the criminal bar applies and there is no genuine constitutional or legal issue in this case but in any event the record is entirely clear that gonzalez mendoza did not ask for a continuance at the beginning of his hearing he represented in  page ninety four of the record and he was ready to move forward with his hearing and they proceeded forward as soon as his attorney asked for a continuance immigration judge granted it over homeland security's objections and mine and i added that's at page one twenty two twenty one twenty two one twenty six and therefore as soon as it was requested he got his continuance he didn't raise this on appeal to the board and instead waited for a motion to reconsider and as the board determined that's not the proper venue to raise that claim because you have to either describe an error factor law and that's not always described regarding the board's decision on the pill so he raised it anew in the most reconsider therefore it wasn't properly exhausted and for purposes of this court it should be consider not properly exhausted if you don't have any other questions for me i would just ok thank you would ask that you just missed the petition honour's what this case does boil down to is what application of the correct legal standard actually does it mean that an immigration judge or that the board can simply mention the legal standard or does it mean that they have to apply it petitioner contends in the instant case that neither party conducted an actual application of the legal standard government counsel does state in their rebuttal that there was analysis conducted under and a while however that analysis ninety six regarding the circumstances surrounding his crime immigration judge makes no mention of those circumstances when he conducts his analysis of whether or not the petitioner was convicted of a particularly serious crime in addition turning back to the continuance issue the government counsel is correct in that the petitioner did not specifically request a continuance because of his surgery at the beginning of the hearing however at the beginning of the hearing his attorney did request a continuance and underbr when the continuous request it would have been visually apparent to anyone in the courtroom that the respond it was holding his hand in the air because it was bandaged after surgery i know it's hard to imagine that from the record but the continuance should have been granted in that