may please the court good morning honors my name is blake somers i represent the petitioner in this case mr gennaro bernadino were here today on mr bernadino his petition for review a final order of the board of immigration appeals or requesting that the matter be reversed and eight been married to the same woman for ten years lived in the same house in new carlisle for fifteen years has eight u s citizen children one of them from the st wife and then four biological children with his wife i'm sorry one of them for a prior relationship for from his current wife and three that he adopted out of some significant problems with abuse both from the children's biological adoptive parents he applied for cancellation of removal in his administrative for moving proceedings that was denied to cleveland ohio immigration court he was ordered to move to mexico he appealed to the board of immigration appeals which affirm the immigration judge and that brings us here today we've submitted judges that the case should be reversed and remanded for three principal reasons one that the agency below erred in allowing a substitute immigration judge to make credibility determination on mr bernadino his case to that route that before the big not the specific argument that was brought before the  does raise the issue well the fact that there was a substitute immigration judge appointed but the due process issue that was raised in front of this honorable court the briefings that we have to acknowledge was not briefed in front of the board that kind of puts us in a bind because the statute clearly requires exhaustion and our cases have even said that the exhaust requirement is jurisdictional jurisdictional requirements are that those are the that the most inflexible  types of requirements so you have any theory for why why your argument in the b i a should somehow be interpreted to encompass the argument that you're presenting today judge thank  you i do it kind of assumed you would get to exhaustion pretty quickly that's obviously in front of the court the issue is that under eight u s c one thousand two hundred and fifty two deal one there's an administrative exhaustion requirement that exist to get from the b i a to an issue in front of the six circuit  i think there's some room on a couple levels for a potential relax standard on that administrative exhaustion requirement now interestingly enough just yesterday this court released decision with a concurrence that talks about administrate of exhaustion and this court of public keenly aware of it is actually authored by judge murphy in terms of the concurrence and i understand it's just a concurrence but i think it gives us an interesting perspective in terms of how we might seek to view indications from the supreme court over the past couple years that perhaps we're over utilizing the idea of jurisdiction and we should be looking at things more of the claims processing in the concur talks about the two kind of different approaches and then ultimately concludes that perhaps  the claims processing rules the better way to view it ministry to exhaustion i think i obviously might not agree with that be sure we have a lot of cases going the other way number one and number two even if that is the accepted view where that really matters is where the government doesn't raise an exhaustion defense and here even if it's mandatory not just jurisdictional we have a duty to consider arguments raised by the government so i don't know if that really that that debate between whether it's mandatory or jurisdictional gets you all that much because the government clearly raised the exhaustion defense in this court so absolutely correct and that's i think that maybe the last paragraph in the in the concurrence kind of suggesting that like this might not be as watershed of a consideration as we're thinking because it could still be a statutory defense but i think you know i think i found this case three o'clock yesterday just in review before i came here but in thinking about when claims processing that gets us more into the prudential area of whether something could be considered in here the parties although there's been a exhausting defense raise the parties have briefed it on the merits it certainly seems to be germane to the issues in front of the court so if we're in the area of claims processing rules rather than in the area of jurisdictional bars i think it allows the court a little bit more flexibility and say you know should be addressed this argument at this time and if it's claims processing i think the court then can make that my philosophical idea about the idea behind exhaustion is that we want people to bring things up in the st instance of the trial court whether the agency district court or state court has an opportunity to correct error in the st instance and that assumes they're going to  write i took a look at some information on the board of immigration appeals website yesterday because this case from judge posner a bunch of years ago talking about workload and i think it adds a level of concern and something to think about when we're considering whether or not to view exhaustion as claims processing a jurisdictional so as of october rd from january st of this year to october rd the board of immigration appeals has competed completed twenty six thousand two hundred and seventy two cases the b a has i believe at most twenty one members which means that in the st ten months and twenty three dollars days of this year assuming full staffing each judge concluded one thousand two hundred and fifty one dollars cases is that relevant to this  case well i think what we're talking about with respect to administrative exhaustion is that we're relying on an agency to do its job and we're relying on it and see to make sure that the issues that are brought up before are decided and with the workload that we have  there are some concerns about whether or not that's possible and whether or not one judge who's issuing one thousand two hundred and fifty one dollars decisions assuming there's twenty one people working on them at all times is sufficient to decide all those claims even in this case you know we see a bit of a punt from the board of immigration appeals so we have a couple issues that the immigration judge raises right he talks about good moral character he talks about discretion he talks about hardship he talks about credibility the board of immigration appeals doesn't even really address the idea of hardship so even here we can see that the b s a is not necessarily addressing all of the issues that are brought in front of it even when hardship was clearly briefed by mr bernardino below  magistrate holding a hearing in a criminal context and the magistrate makes recommendations to the district court the district court is the one who actually engages in the fact finding and the district court did not attend the hearing and so did not witness the witness able to view the witness for purposes of the credibility of terminations it seems to me your argument could almost be revolutionary in terms of a common practice of magistrate judges making general knowledge i think the magistrate judges would issue a report recommendation that is a trier of fact would include the credibility assessment based on the demeanor of the witnesses that the district court is neither free to adopt reject i think perhaps rehear although i may be mixing state and federal magistrate rules that's just off the top of my head i think the analogy that was in my mind was that of the trial court assessing ability versus assessing credibility versus a court of  appeals reviewing credibility on a cold record which is kind of what i think we see in this case we have one judge who tries it and then another immigration judge over five years later who comes in and decides to make some credibility determinations based on that court record and i don't think we have to look real far in the six circuit jurisprudence to see examples of cases where we want to rely on the trier of fact this is a great case from back in april i think it's in the last go  barr is talking about these core competencies of trial courts versus courts of appeals and the courts of appeals are about interpret in language in the courts the trial courts are about interpret ing behavior they say that's their core competency so that's what the immigration judge should be doing and we shouldn't be allowing a substitute immigration judge to make a demeanor based credibility determination simply on a cold record especially worried appears that there was some demeanor based credibility determination going up so if you look at the transcript proceedings i think it's around pages two hundred and two thousand two hundred and two of the certified ministries of record immigration judges engaging mr bernardino about this issue about whether he was using an additional social security number to obtain employment how long he had used it and the immigration judge to the way i read it gets almost like a little paternal he says oh you know you really shouldn't you shouldn't be trying to color testimony you know you really need to give us the one hundred percent truth here mr bernadino says oh you know everything changed when my daughter was born and so in my mind you know this guy's kind of encouraging that mr bernardino to take a more forthright approach it's true there's another view of it where the judge sternly admonishing mr bernardino to tell the truth and he's kind of cowering in the corner but i think the idea that even when i'm looking at it you can have two different readings of this is perhaps the reason why there's a defect in the press seedings at all is that we can't really tell from a cold record the demeanor based credibility assessment that mr bernadino is frankly entitled to and if there is a defect as a due process claim then i think there's prejudice even from the face of the opinion itself so if you look at it the immigration court denies his claim st on the basis of of just an adverse credibility finding this wasn't in the b finally only last night did it figure out where that's where that's more of an asylum standard than a cancellation of removal stand a really just landslide lose on credibility but even assuming that from the face of the decision there's at least prejudice in terms of the fact that the court says it's going to deny it based on an adverse credibility determination but then this adverse credibility determination comes in not only in the good moral character analysis but also in the hardship analysis which we've briefed separately as being inappropriate and then again in the discretionary analysis so this one demeanor based credibility assessment that goes into the substitute judge's decision affects not only his initial assessment of the case but also his assessment of all three prongs which are held against mr bernadino in terms of denying his claim for h you know you've got the cases i mean there was a due process argument raised but it just wasn't this one below and i just wonder if there's any one case that you think would be most process violation of we've we've cited in our brief a couple of cases that found that there was no due process violation and we've sought to distinguish them so that's the biggest case out of the rd circuit the remember case out of the th there's versus holder which i don't think is cited in our brief but it forms the basis of the rd intent circuits decisions have been a gets in america then obviously we have a guy a verse is lent which is a little interesting because guy actually finds that it's an on preserved issue and so the panel in discussing it says we don't have jurisdiction to address this and it kind of addresses it anyway so it i think there may be perhaps some unintentional dicta in guy but then obviously gay also has the the really long dissent which was issued by judge white which at least forms  conceptually the basis of some of what mr bernadino is arguing here today so i don't think there's a case that we found that specifically says a substitute immigration judge meaning to mean a base credibility terminations is a due process violation but those are the cases that i think ok suggest thank you you'll have your came in and rendered adverse credibly terminations and that's what happened here is just that the judge retired instead and that had to be exhausted and guy even rejected petitioners claims to try and fit their arguments into what there is in front of  good cases to look at because they state that there's only perhaps a one or one factor or could be due process i was sure they were under a demeanor finding and that i don't there was no demeanor finding in this in the transcript that someone is being invasive or witnesses taking a long time to answer and sometimes will say let the record show that titian has taken a long pause before answering so you could still make a demeanor finding on a cold record even there so i don't it's ever found a due process claim to be valid in this regard or rejected one specifically just the guy in which said he had to exhaust this st so that regard  even if was exhausted the claim lacks merit because there's no prejudice there's no error in the immigration for god because it was a demeanor finding if there was that could be supported by the record in other cases and also hasn't point any prejudice as far as due process you don't see argument is opening brief discussing how the adverse credibly germination was erroneous and raise that for the board but he's not raising that for the court and so i believe in the end process plan must fail that suggest that the look back period starts from the date of its decision and i wonder how that i guess is not raised here so it doesn't really matter but i mean i was just looking on the face of the  run backwards from the final administrative decision which would be the board's decision in this case but the but the do they have any so it says has been physically present in the united states for a continuous period of not less than ten years immediately preceding the date of such application and then has not has been a person of good moral character during such periods of such period such as the pronoun the antecedent is i think looking back to the prior warning and the ten year period is from the data such application believe a lot of the reasoning was that the old rule which just cut it off at the service of the m t a was didn't make a lot of sense because then you'd have someone who could conceivably do bad acts or render false testimony throughout their time for the immigration court and that could not be used sport of finding good moral character as they found it to be nonsensical and so you had to keep running the period up until the final ministry decisions so therefore if there was anything that came up during rule proceedings for example new arrests new convictions that could be used for good moral character because it didn't make a lot of sense to cut off the most recent that that acts so it's like a policy based argument that just that cancellation over all discretionary germination but many forms of relief that require that final discretionary act asylum and adjustment status simply those jurisdictionally barred by talking to a to be double i believe period big respondent was was very accurate with his recitation of why matter of ortega cabrera kind of reasons that it goes all the way to the date of the final hearing i think it was also an analogy to old school suspension of deportation and also ran a kind of a similar time line and also doing that for me but it seems like you've conceded that that is the relevant date and you're you're you're argument on the good moral character point is that with that at the start date because the big gap between application and decision that some of the stuff in the earlier period covered was exactly right i mean either either his date would end in two thousand and seven because the administrative decision from the immigration judge comes out in two thousand and seventeen in which case if that was true then a lot of the findings with respect to what happened at the hearing which form the basis of no good moral character would be counted because it would fall in between it would come after the applications are not tolerant of bacteria that's that's exactly right they're all outside the lookback period but it seems very clear even from the ses the face of the b a s decision that they are considering them in assessing the case it also comes in when they're assessing hardship and that kind of leads us to that idea is that the hardship analysis performed by the dia is also flawed because what they do is they say well the hardship analysis conducted by the immigration judge not to be an immigration judge says well there's some hardship here but it's not enough to outweigh some of these native discretionary factors here and he does that with in the hardship analysis which is not correct under the statute we don't have a balancing test on hardship it's something of a standard to meet but it's not balanced against anything else and i i think if we if we take it in reverse i think the department will probably even resistant because let's say we have somebody who has not much hardship but really really blemish moral character that person would come into court and say you know look at a great guy i am i shouldn't have to show you as much hardship in the department is going to say whoa no you still have to demonstrate hardship why does it why does any of that matter because the government's point that there's no jurisdiction during need to review the discretionary bouncin and that's clearly the reason you know which to be so i would distinguish between discretion as it relates to actually where the credibility issue comes back in because of the credibility issue is reachable and in correct to the credibility issue also is what really informs the court's discretionary analysis and i think if there's a legal issue that creates error in that part this court still has the ability to remain and even though there was a discretionary issue that was razor still legal issue about it that the court i believe has jurisdiction to review so that that i think whether it's on the discretionary issues itself or on the substantive issues related to mr bernardino's hardship good moral character discretion or otherwise eligibility for cancellation removal we respectfully request that the court reverse and remain and for further proceedings of the panel has any other questions i'm happy to answer like we do so thank you very much your honor thank you so much for your time and we appreciate arguments from both of you today and the case will be submitted and i may call the next case