findings of fact underlying the hardship determination are nondiscretionary so given that and given this court's holding in my terre martinez that this court this court retains jurisdiction to review the board's erroneous fact finding that mr perez tore as i stated that he could not recall when he last gave money it was awful if you're right about one of the it was i think the first published case that held that there's no jurisdiction to review the hardship determination with the facts were undisputed so certainly that remains you know if the facts are undisputed you that you would all and if you don't have any law then you think that if there's just if there's some kind of factual dispute that's not relevant to the determination then that would not give rise to jurisdiction in other words the statute was still strict jurisdiction to review the hardship determination sergeant your honor i don't know if in legislative history in the sense of like floor statements or committee statements i don't i don't know but but this court did a detailed review of the statute  and concluded that there is jurisdiction over non discretionary determinations because of the the course and it came to that conclusion because the statute uses the word judgment lots of time and outside the context what is this factor that disputed that you want to review the the i j a and the board said that mr parrish torres testified under oath that he could not recall when was the last time he gave any money to months before the hearing he said i can't recall what the last time i gave my father my money but it was one or two months before the hearing he said quote last time i don't remember it was a month ago or two months nine months ago or to my repair was a hundred dollars correct and and the and i j said sound that the quotation from the administrative record is quote he stated referr law and therefore he is entitled to our determination of hardship no no your honor therefore i think the appropriate remedy is we state the case for this the appropriate remedy is to send the case back ok and which paragraph ok i said it's the second full paragraph on page forty that's right ok so you've got one sentence he's got one sentence there down below i says there's no evidence to show his l p r father would go to mexico with respondent you challenge that statement you know what the next one  evidence to show his father currently hands on the respondent for his daily living room motional support you challenge that no new evidence to show that responder has a close relationship with his father to challenge that you know the only thing that you challenge is that he actually can recall that he gave his father one hundred dollars a couple of months you get relief i think so i think the appropriate remedy is to send this case back to send it back to the board and state he can recall when the last time he gives it and even though we have all of these other statements which seem quite damning and which you've conceded here there's still relief to be granted here case one of the dispositive factors was what sort of monetary support the alien was giving to the lawful permanent resident relative and the attorney general has not denied that it's material counsel sometimes when respondent has failed to show sufficient hardship was qualifying relative now why can't we rely a lot the board said there because within the i j a as decision there are at least three very critical findings to the question of hardship which you have conceded here today so why can't we can we say that the i a e a has issued an independent finding that there is insufficient hardship and even though they failed to correct this one minor misstatement that there is more than adequate evidence to support the ice decision because the circuit has held that when the board adoption affirms and i j your honour's christopher mcgreal on behalf of the respondents this court should dismiss the petition for review because the court lacks jurisdiction over the border and immigration judges discretion or determination the petitioner fail to demonstrate an exceptional  and the agency through the attorney general weighing these these factors and it's such a subjective value without a legal standard it's a it's a weighing of the equities and what we have here today's petitioner just trying to  difficult it's what is the government's position that that's because the hardship determination is discretionary that therefore all facts underlying the hardship determination a finding by the way that he gave his father only a thousand dollars over a period of five years and therefore you can't show that there is any undue hardship to the father and it turns out that instead of the thousand dollars that was it being a appeals would and that leads into an exhausting argument that the b i didn't correct it well in the b i was never even put on notice because petitioner before the book before the board said we're incorporating the facts of the immigration judge sixteen two thousand and six what effect if any petition or status under the family unity program has on the board of immigration its appeal dated december seventeenth two thousand and four you find that the that this  oversight however we feel that the partition years subsequent approval application of the family unity program has no bearing or effect on the underlying decision regarding the hardship determination it as long as he is part of the family unit program the determination mission to have any effect on you know your honor as long as he remains eligible under the family unity program and continues to apply for these two years extensions of voluntary departure which he has now from march two thousand and six to march two thousand and eight he'll be eligible again to applies only to keep supplying he will have an order of removal but d h s when i execute that as long as he isn't part of the family specifically apologize for not addressing that opening brief but we feel that it isn't relevant to this case there is one other matter your honor that we would like to bring to your attention we have and we note that in the board's decision here six thirty days of voluntary departure which this does not appear to be in line with this court's decision in could you could yeah while we in the past have suggested to this court and other cases that have dealt with this situation that it should be returned to the e on that limited issue only we feel that that isn't the case here because petitioner is receiving these other two years of voluntary departure grants through the family unity program and as long as he stays eligible which the eligibility requirements are  the family unity program in these two years extensions a voluntary departure he's already receiving these eligible that he's already receiving more time there which you know if something happened here and he failed to make an application those things could move pretty quickly couldn't suggested in the past in some other cases that a return to the board on the sole issue of voluntary departure will be necessary to our contention is that he's already receiving these these extensions of voluntary departure but again this is within the court feels needs to be returned slowly on the issue of the voluntary departure that you are dangerously no need to do that because sixty days is being taken we're you are standing he's getting at least that he's actually getting more time than he originally got these two years or the or the i j a or somebody to make the correction well the happiest result would be if we did send it back to the board to correct the sixty days the board would certainly have jurisdiction at which point i would fall in motion administrative leave clothes because that's something that can be review ability of the factual determination was that it was that issue raised to be frankly no i mean in numerable bitter experiences before various panels i had raised that in essentially i felt like in this case adoption affirms decision but why is there a challenge no there was no challenge but that doesn't matter under the b b case it doesn't matter because the board adopted and affirm that the idea is factual