petitioner sought relief in the form of special rule cancellation of removal for battered children on the basis of in the us that experience at the hands of his legal permanent resident mother the i j a granted that relief in a decision based on extensive factual findings that was tailored closely to the statutory text and purpose and importantly the i g found that petitioner had good moral character and was eligible for and deserving of that relief despite his criminal history in which determined it was connected to the abuse he experienced in reviewing that decision to be a overstepped its authority in failing to it here to the applicable standards in three critical ways st it failed to apply the clear  i don't affirmatively here are great well i just say these areas deprive petitioner of a fair few this case when he faces removal from a country he's known since he was three years old and they undermine this court's precedent and up and the efficiency and the integrity of the appellate review process so let me turn to that clear error review issue the board regulations provide that or it may not engage in to novo review of findings of fact by the immigration judge i mean only review those findings for clear error and fundamental to that concept is that the immigration judge is tasked with making factual findings based on credibility determinations and on documentary evidence or not in permissible for the board to you know it wasn't violating the clearer standard by just considering other documents or information that was in the record why is it that th sure the government would draw a role from that case that the board can rely on its own factual findings from rock record evidence and draw conclusions from that in rendering a discretionary decision that's plainly not what determination and that its references to the record were consistent with the i j a findings and it just weighed those separately to the extent that it was drawing factual conclusions that were at odds with the i j a or that were test consisted of majority decision at least viewed as consistent with the i j a findings and that it's an error in doing that but i don't want to read the word the this court as concluding that the board reached its own factual inferences or conclusions with respect to brought evidence which is what waldron clearly states is inappropriate under clear air review so it's a very different from this case where th and there the court me to factual findings inferences st that petitioner caused great pain with respect to his threats of violence conviction but that conflicts with the immigration judge sat down and thirty crying it also conflicts with the board's rescued me the board also drew the conclusion that that victim's family lived in fear of retaliation which conflicted with the immigration judge's findings that petitioner didn't pose a threat to the family or the community it was evident in a number of findings throughout the decision for example it jenna page twenty three that he completed anger management classes in parenting classes the judge found that the incident reflects more of his challenges with emotional regulation than any desire to cause harm and a bare minimum the board found that this statement was accurate and credible which is that the heart of with the i is role it's in this case the board is credited that statement despite the fact that it had identified bias he's right on the top it says that the author of that victim impact statement quote had ongoing concerns with the defendant's neither petitioners the mother nor the mother of his child to testify at this hearing which just shows the same disagreement as to whether or not they would have experienced extreme hardship at his removal so the board  however there really characterizes it shows that it's qualifying the sentence coming before it that he had close family ties and the word is entirely the word extreme hardship finding there so the way that the only way i think you can read that in the board certainly wasn't reciting procedural history or it was it was whining and saying i actually disagree with this close family type point but i didn't find a clear with immigration judges fighting on that point so of right and this court is already held in the white vs ins case that motions to reconsider are not remedies available as of right and therefore are not required to exhaust so the law suit case w this court follow a number of out of circuit cases including that st circuit case that held that a motion to reconsider is required here none of those cases discussed that as of right language at all but we cite a number of cases in the th circuit an appeal as of right is an appeal over which an appellate court must exercise review because it has no special discretion to deny repeal so you have the right to a two to file a motion to reconsider but the agency is within its authority for any reason to deny review as a matter of it's just action there for the appeal is not an appeal as right you like a petition for certiorari where you can you can petition but the court has no obligation to hear it as opposed to a direct appeal to this court from a district court for example regulation i can find this for you it did with respect to motion for real and says it may be denied even if there is merit to the motion so that i don't think there's any requirement that if it's a meritorious motion for reconsideration or motion to reopen which would have the same language would apply in both appreciate that well i can be brief here but just want to point out that the warrant here acted contrary to law because it failed to apply the correct legal standard in rendering its discretionary decision and the finding board president here under a matter of a instructs that in rendering it just a question any decision the factors that the board may consider to be adverse or favorable to the application have to take into account the particular form of discretionary relief and in the context of special rule cancelation that means that you have to weigh those factors in the context of the battered south that spouse or child provisions of the statute and that is in consideration of whether a child has been battered by a legal term a resident or us or our u s citizen abusive relationship over someone who may exercise the threat of deportation or immigration benefits over them and the court here clearly failed to consider this discretion is relieved and its decision it didn't consider the statutory purpose in any way to account for the stench tree framework where petitioners moral character determination had already been determined by the immigration judge at the eligibility stage  that that he had been granted it discretionary waiver of the criminal conviction because of the fact that it was connected to the abuse he experienced as a child because the board failed to it here to those principles and it otherwise issued and inconsistent and reasoned decision i made acted contrary to the law and for that reason and as well as its violation of the clear air standard of review we would ask that the court grant the position for review and remain the case back to the immigration highly suggest it cites the st circuit case which does stand for that exact proposition and if it exhaustion was not required through a subsequent motion t this is the difference between there is a difference that is lost and this from an argument between a remedy exhaustion issue exhaustion first of all and then the nd of all what why not exercising our discretion denying this reconsideration motion that alien could seek judicial review and that would get overturned because it's an abuse of discretion review that review that you can show that  decision was contrary to law which is one way of showing the use of discretion so that's the exhaustion with respect to the impermissible fact finding as to the legal standard claim part of the issue here is that the standard for balancing the factors for the exercise of discretion in the cancellation context and that's for all different types of cancellation whether it's for permanent residents not for residents or the special gro believes matter am substantially changes the outlook here and even if we were to get into that issue the the factors that the board looked at the way the board looked at the decision threw out its evaluation of both on case law about there's some should a due process violation when an agency renders an unreasoned decision but that doesn't require what that requires really is for the board to set forth a  decision that that shows its reasoning and this court can't figure out how to review it and that was done here it soon the statutory eligibility part and went straight for the ultimate discretionary part that is all that was needed i elements come st and then the nd part about the exercise of discretion i mean this court has recognized that that's the equivalent to or similar to executive clemency and within the attorney general unfettered discretion which the board exercises on on his or her behalf so that that is why there is no issue there and sells mean case of this court answers that and the special rule does not agree with the exhaustion arguments on the other two claims we have laid out our responses in the brief and if there are no further questions i appreciate all of your time your that the causing of great pain what what the victim suffered or did not why are those not contradictory of the i j j findings on high end those are very similar matters in the decision making process  they are not contradictory really we're not in a situation like in walton where you have this direct conflict the the board referenced that victim impact statement to get at the seriousness of this crime and seriousness is a judgment call it's all did was look at evidence that was in the record from the beginning and weighed it differently as to a judgment call of seriousness and weighing that against the mitigating factors and there is no direct complex mr many claims that there is the fact that there was no physical injury to the stepfather of his child's mother the board is not discounting that for supplanting that this statement is about the is just a reference to the opinion that the woman's mother about the emotional pain reflects the complicated relationship between mr ments the mother of his child and his i'm sorry and her parents and the same goes with respect t hardship the hardship was the board recognized the close ties it assumed partnership as a statutory matter and once again it just weighed it differently and it does didn't need to go into any great length there's nothing appreciate that thank you just to jump right on that last conversation judge elliott your point about whether it's in direct conflict we've laid out in our brief where the conflict exists and i'd just like to point out that it doesn't have to be it walter was very clear it doesn't have to be an express conflict with something that i did actually said but implicit findings of the immigration judge are just as subject to the clear air standard asked him as the explicit findings are so but i also want to note that  this court's decision in both it will turn to me there was one point where it talked about the board had made a finding about the probability that the petitioner there would be able to find another job and the court held that the extent that the probability was important the born should have remained at that for the immigration judge to make findings in the st instance and not reweigh the underlying evidence so even if there's not an express conflict if the board is drawing its own weigh the i g f factual findings differently when making ultimate determination but you can't supplant those findings with its own and that's precisely what he did here to the extent it was important to learn about the emotional or psychological harm any purported harm to any of those family members and the board should have reminded that to the immigrant to the immigration judge in the st instance a couple other just three points about in response to the government's argument with respect to  on and our legal standard claim that immigration judge applied at the correct standard we've never either with the board or with immigration judges required that that they use any kind of magic words so the immigration judge here however did to cite matter at eight am when setting forth the standard for discretionary with you and then her now says clearly incorporated the statutory purpose into that discretionary decision