removal under the appropriate law which is a mandatory form of relief or else send it back to the b i a in the agency with appropriate instructions that they consider on the merits asylum withholding or cancellation of removal in short there were two errors at the v a number one they treated petitioners asylum case and withholding case as a derivative case regarding to the fear of her children against female genital mutilation  and exactly the way in the case with presented to the be the case was presented to the b a i think in terms of l turn of the there were facts that were stipulated where there was indications of the petitioners fear as well as the fear that she expressed on behalf of her children and also the record evidence in addition to merely the petitioners testimony strongly suggests that it is more likely than not that females in the gambia will be subject to a i think the question is wasn't it presented to the board as a grid of claim it was also presented to the board as a derivative claim yes and so in that where was it presented to the board as a direct claim of persecution against the afa can you point to where in the brief we should look to say that that claim was properly presented yes sure it's it is a good question we did not represent the petitioner in the proceedings no i'm not saying so good but you have the brief you have the record and you're now representing him here so you you have to show how this claim was presented yes your honor that in the only thing i can point to in the record are the facts as a whole when you look at the oh i see serious thing there were facts there that could have supported an argument yes you're making now but they didn't make the legal are the legal argument was implicit at the  seven where there would be manifest injustice and in this case you had a pro se petitioner at the immigration judge level and she did testify but if not before the behavior but not   new case the second circuit and in this case a manifest injustice would result in the court to not consider this claim as a claim of direct on any parent who sees the mutilation and torture of her children would obviously suffer harm the the situation in the gambia is not like the situation room in new where the court declined to consider this motion because unlike the case  one case it was in binney where the statistics show that if g m was about seventeen percent to fifty percent of the population the female population underwent this procedure procedures to clinical it's horrific persecution problem and in the center for withholding is more likely than not which if you fall apart that would be fifty one percent fifty point one percent but in the case of at the bar today my client number one had a cousin who suffered f g m there's an affidavit in the record of page two eighty there's a affidavit from that cousin's doctor it to eighty two neither of these were discussed in the holding by the i j a when the holding by the b o h and important procedural error that did her harm which also violates the due process clause resulting in a removal there that may well have decided otherwise that she have a seventy percent likelihood in the gambia female genital m you have actual harm to family members from there plus you have the testimony of her sister which indicated that the protection that they had in their village was because the presence of a group of local nuns and the local n more likely than not probability and thus you can reach the legal issue of the case be the other distinguishing factor from from whom i knew is that in that case when you were talking about clear probability standard there was a us citizen or permanent resident parent who could have kept the children here in the united states if there were removal in this case there is no such luxury the petitioner is facing removal and her husband does not have the status to keep to her neither parent would be able to stay legally the united states and the children u s citizen children two of whom are daughters to be forced to go back to the gambia and face at least seventy percent likelihood of female genital mutilation i i don't think that there's to reconsider matter of a k i think is also at least an implicit argument judge call it in because in matter of a k that itself allowed for the possibility that it could be considered a direct harm  remain but under current a circuit precedent that is for close review so we do argue that she had a extraordinary circumstances and a good reason to file late your honor also in this case is she had false testimony under oath at her natural adjustment of status interview when she due to the separation of her from her husband indicated that she was not married and the reason why it's a matter of an error is a matter of law is because at the time of the interview she wasn't eligible for adjustment of status based upon the petition already being preacher emitted that petition automatically revokes when she marries after her  after the petition is file but before her mother became a us citizen so in that sense it wasn't even possible for her to adjust there should have been interviewed scheduled and even though that does it matter if what occurred during the time of the kurds seeking relief and that way she actually does make the inappropriate for connection and in fact wrong statement to the officials i'm not married right and i was just referring to the matter of law but congress versus us talks about the fact the false statement has to be made with a subjective intent to to wrongly obtain a benefit there is evidence in the record we are which establishes that that wasn't met but even if it were so what you're saying is it was impossible to get what you wanted but the desire to obtain it was the motive for the dishonesty the desire she clearly desired to get permanent residence but she was unaware that her marital status had any influence on that outcome the petition itself was invalid it was legally impossible for her to get the benefit and as a result even assuming she made a knowingly false statement the state has to be material steve it has to be relevant and if the state in this case was over in a possibility we're not saying your honor that it would have made it right to do or moral or anything like that we're just saying that even if you took the dimmest view of her testimony it was over an immaterial and i was in impossible because the way the immigration law works there are certain categories of preference based upon which relationship is with family thing it's a it's a whole law school course but in a nutshell she went from unmarried daughter of a permanent resident which is in one category and then that will port to a different category automatically if the petitioner becomes a u s citizen before the beneficiary marries when she married by operation of law that petition was dead didn't exist but if they believe her that she was not married to her statement that she was not married they could have mistakenly and that's exactly what happened they did believe  mistakenly grant it but but i'm just speaking to the issue of law is that it was an impossibility there was no fisa to be obtained so there could have been a material false statement to obtain a benefit there was no benefit to obtain that is an argument that was made at the at the lower level again i believe that the petitioner she had she just had a child she had she had had symptoms of postpartum depression and she had gone through a separation from her husband which lasted almost ten months there were extenuating factors which i believe makes the circumstance mourner stand well at that interview that's where she was pro se and she didn't have the benefit of counsel anywhere could have let her know you can't even file this you know it's obvious and then later if you were looking to motivation she's the one who told them about all about her family relationship when she tried to get citizenship it would never would have been discovered by the government of the petitioner and come forward so it's a mix er judge it was a violation of due process she wasn't allowed to present on the merits who wrote who knows what other you know that could have been testimony taken with regard to that specific fact there could have been briefing done on that issue that wasn't done i mean in my rebuttal time and as i promised i'd call it and i would find guess i would say that goes to her intense because obviously she thought that she could get it otherwise why would she even go to the interview i mean if she firmly believed that it was impossible there is no point to going to the interview she went to that interview to get it just status and she knew from the approval notice that was on her mother's visa petition that her category which is stated on the notice was i married a daughter of a lawful permanent resident so her claim that she thought that her marital status  irrelevant is simply not possible she knew that was the visa category should receive what is it he thought it was relevant but he says it was mistaken she was mistaken and that it's not relevant that's what i hear the argument this morning for the applicants to be truthful when they enter view them at their eligibility interview and the c i s officer officer bird testified that he asked her point blank have you ever been married and she said no he then wrote in his own handwriting on the judgment application states never married and she never disputes that she's claimed she doesn't recall being asked a question but she never directly denies that no there's no way he asked me to die and so by telling that say yes officer that she had never been married english she's college educated she has the proven notice when the mom's pieces granted noting that her category is i'm married adult daughter of a lawful permanent resident the only reason for her to lie about her marital status is to give the impression that things are exactly the same when mom's b c it was approved i'm still i'm married daughter now of a citizen not a lawful permanent resident i mean she's never answered the question that if she was if she thought the marriage is irrelevant then why lie which is pages forty three to forty five that had no to set out is that that the circuit law on derivative claims is unsettled and noted that this court and go in our heads against that claim but it noted decision from other circuits that seems to just that it would allow such claims and basically that entire argument was asking the board to revisit such an in matter of a k at no point in their brief to the board did she make a claim that no it's really a direct claim to psychological harms from what is seen my daughter is being subjected to f p m therefore that claim is not exhausted i will say i'm not familiar with the scrim court case that opposing counsel cited but i buy that but it's not an immigration case  state department board's that's a seventy percent practice rate of f p m and gambia she noted that the petitioner all of her sisters and her mother themselves are never subjected to f cham while they're there both petition er and her husband were adamantly opposed to f c m and the claim of the threat was from unidentified distant relatives and that last point separates this case from all the other decisions where they have allowed claims on area gambia where the discern relatives would even know if they were back i mean she has no relations of these people when asked on on testimony there was anyone other than her grandmother any relatives who live there she only referenced a single and she said she was not close children they were born in i believe two thousand and eight so they would be about five or six but there are several relatives who live in the united states who potentially could take care of the kids  was a legitimate threat to these girls should they return to the gambia we would also note that the only circuit other than the six in the bay which directly addressed psychological harms to an alien parent from their children being subjected to f c m was the fourth circuit and nine persons alice and their they rejected that claim they said that psychological harms alone to a parent are not sufficient to rise to a level of persecution  which the other ground you said for removal ability it's on it's eleven a two eighty seven which is not having a valid entry document at the time you just that us and again because she was not eligible to adjust status at that point she would have to have a valid does have her parents and brothers and sisters who are us citizens that fraud ground or move ability is a way of a ball so potentially she could try to adjust status if she were to get a waiver on that ground in the  the petitioner and they were clearly the heading says derivative claim but as we know from statutory construction the heading doesn't control but rather he cites of a which is the sixth circuit case which says that  in this on page forty five specifically it talks about the border issues of harm to family members not risk and the derivative harm associate with effects upon the those emotional psychological witnessing harm to one's children dismissively cite a bay and talk about the petitioner being the one who suffers the harm it's at least enough of a raising for the court to reach it here under the light of the circumstances of the case where six year old girls are facing mutilation and the mother having to endure it with regard to the affidavit of the cousin not mentioning whether the daughters would suffer female genital mutilation why would it the purpose of the affidavit was to show that the cousin had suffered  it the purpose of the affidavit was not to give an expert opinion on whether the daughters would suffer females and in general mutilation the records already replete with evidence that they would judge collison your argument or your question about is it just cancellation is or removal the mr o'connor's answer it's it is relevant we haven't contested remove ability because there's a whole turn of the ground of remove ability but that is shoe of a fraud is important if you're thinking of a due process angle on whether there of documents she could come back in there's no special waiver for that there are there are other waivers and may be required but fraud fraud on testimony may finish my finisher's so the the fraud ground is