please the court section two d provides for review of questions of law decided by the board of immigration appeals i'll start with where we in the government agree at minimum courts may review whether the board identified the proper legal standard the government agrees for this review to be meaningful and not just a requirement of correct boilerpla whether the government used the proper standard again the government agrees review extends to whether quote the board actually used the wrong standard despite acknowledging that as the government fails to distinguish how reviewing whether the board actually used the correct standard is different than reviewing whether the board correctly applied that standard in our view these inquiries are effectively the same they use the same tool applying the correct legal standard to the facts to the extent there is a difference the government does not provide a test for telling them apart jurisdictional rules need to be clear but the government does not explain how courts decide whether the board actually use the correct standard or rule is clear there is no judicial review over historical facts but there is review over their legal significance the court should adopt this construction for three reasons st it accords with the essential premise of judicial review which the statutory tax has unmistakably established nd it is necessary for congress to have fully responded to st cyr and rd it is a clear rule which is crucial to establish the boundaries of jurisdiction turning to what congress needed to do in order to fully respond to st cyr there are at least four separate points that illustrate congress had to create jurisdiction for the application of lots of facts before you get to that i wonder if you have not read too much into the government's statement that a that under their theory it would be permissible for court to review not just whether the board articulated the right theory but whether it actually use the right theory when i read that i thought what they were saying was that  review would extend to those perhaps rare situations where although it was in response to your argument that if if if the right standard was merely mentioned that would be sufficient and i thought they were just saying that if it was clear that even though the right standard was mentioned you could see that that was not at all what was being done that there would be review there so i thought that was a very narrow exception so the difference between what i understood them to be arguing and your position was considerably larger than what you suggested to start out well as your honor suggests i think the government does agree that if the decision of the board on the face invokes the correct standard but a reasonable reader of that decision would appreciate that that standard was not used to actually decide the case that there would be judicial review about once the government agrees with that which i think they must otherwise it's just a review in substance or not in substance and only in form once the government agrees with that they haven't actually articulated how that test differs from applying lot of fact and our pool i think it's like a sham it's a sham exceptions so if that's really not what's going on that they're not really applying the ri theory that the theory that they claim to apply there would be reviewing that situation that's a i read it now oh your eyes lukin correct i think a few things about that st i think it's very difficult to distinguish what makes for a sham articulation of the standard versus not actually looking to discern the charm and whether was properly applied how do we determine if it was a sham you consider what the right standard is you consider the facts and if the facts turn out to be a textbook application of that standard but the border is the opposite conclusion you would find that it was a sham but there's a big difference between your two positions on and has to do with the application of the week old standard to the facts where the legal standard requires a considerable exercise of judgment as it does with equitable tolling where you have to determine whether there's due diligence or exceptional circumstances you would say all of that can be reviewed well yes but i think to the extent there's a difference if there is a difference it's a difference in degree but the government doesn't provide a way to distinguish between when the degree is sufficiently anough to say that the standard wasn't actually used but the other problem with this is if that is the test of the government advances it has the effect of merging the underlying merits of the inquiry with the jurisdictional analysis the end result would be there would be jurisdiction if the decision of the board was really really wrong but not if it was a little bit wrong and so that result would be that you'd have to do the merits inquiry to figure out even if you have jurisdiction over that well suppose we take their principle argument which is that this applies the only thing that can be reviewed is a pure question all right that's a clear  is it not yes and i don't think they actually stick with that but that would be a clear clearly that's right ok and under your interpretation what is the difference between the degree of word view that is permitted in the case of a criminal alien and the degree of review that permitted in the case of a non criminal alien so there are very very low it's very slight right i don't think so you argue there's a very substantial difference and that's that there is no review over all of the factual determinations that are made and are very substantial factual determinations that are often dispositive of removal cases that are made throughout these proceedings and those would not be subject to judicial review are all made under a substantial evidence standard it's a highly deferential standard so i take your point that there might be a few cases that would come out differently but it would be rare wouldn't it i don't think it would necessarily be where you are and i think there are many cases where the courts of appeals under substantial evidence review still reverse the factual finding but what we have here is we have a state and statute two d that was written for after to see and the reason that two d was was written on top of to see was as a response to what this court held in st cyr so i think to understand what congress was trying to accomplish  be it's important to understand what congress needed to do in order to respond to what this court i take it well i'm sorry you keep on wanting to talk about sincere and we keep wanting to talk about other things but before you get to that  throughout your brief there is this idea that really mixed questions of law are pure questions of law i mean that you know if we have to put them in one bucket or another they should go in the legal bucket because they're all matters of interpretation you say they're all essentially law alike but you know i started looking around to think about some of the other questions that you were view might suggest as a last question and so here are just a few that i came up with whether a non citizens removal would result in exceptional and extremely unusual hardship whether a non citizen has been subjected to extreme cruelty whether change country conditions are present i could go on but all of these you know if you just sort of look at them and say what is it mostly going to involve it seems as though most of those questions are going to mostly involve fact finding so there are a few responses so that st some of the examples that you gave are ultimately issues that are discretionary and we have a discretionary question of course there is a different framework under to be which would there would be review over the  eligibility for the discretionary determination but for example whether or not there's a change country conditions likely a discretionary determination by the board but to put to get your principal question about how we disentangle that the facts in the law here and i think the question goes to whether or not the liquid style analysis where we characterize mix questions is more principally legal or more principally factual should be used in this context and i think of course the court has established that sort of framework for use in other parts of the wall i wasn't even talking about using the ridge framework here i was just sort of talking about the assumption that your briefs make that if you were to put these in one bucket just one bucket it should be the legal bucket that these are really law questions and i guess i'm saying that when i look at the range of these questions quite a lot of them seems to me to be really fact questions you know cases where it's not only the finding of facts but it's the way in the facts the making credibility judgments  the way in you know the balancing of different facts against each other that sort of thing but so your honor i agree and so far as what the board is doing is finding historic facts or finding credibility or adding historic facts to make other judgments about historic facts or predictions about future facts those sorts of factual determinations are things that would or would not be jurisdiction under two d what our point is is once those historic facts have been found and then a legal standard is applied to those facts that aspect of the next question is legal so in let me try to clarify or briefs we think in every mix question by its definition there is a legal element and there is a factual element and so sometimes it's true the factual element will be far greater than the legal element but our point is that one thousand two hundred and fifty two dollars creates a structure where there is judicial review in so far as there is the legal element of the mix question and that unlike what happens in other contacts where those two are put together and there's a single center of you provided the the legal standard or considering the legal significance of those historic facts that is where the board is doing legal work and there is judicial review over that as a question of why i was talking to you about this in similar terms to justice  but what i realize gave me some clarity was a statement that my colleague made in a case involving the exceptional circumstances of diligence and where he said it's a question of law because let's take the cruel cruelty issue whether a punch is cruel or a knife will do is or a threat to family is all of those are facts that can be found by the be either a or a finder of fact but whether it constitutes or rises to the level of the legal standard is a question of rock correct i think that's right your honor and one example in this case this is the issue of whether or not the st circus decision luka resigned as qualifies as an extraordinary circumstance either that change in the law qualifies as an extraordinary circumstance which has substantial effects for a cool towing or doesn't but whatever the mean isn't wouldn't one thing to do if you're trying to figure that out to be look at the range of legal decisions determinations that said this conduct is cruel this conduct is not this conduct to school and i don't know that it makes it any easier to characterize well i think you are the court has found that it is relatively easy although there are always line drawing but the courts are well equipped to be able to distinguish between where historic fact ends and legal conclusions beget that's something that courts have to instance well your honor i can say that factual disputes are very often entirely dispositive of removal proceedings it's true that those cases may be less often appeal because of the substantial or this standard of review the courts of appeals apply but i can just provide a few examples of factual issues that are often dispositive for example an individual might claim that they were mourning the united states so in fact a us citizen they might claim that examples of past persecution occurred so they're entitled to asylum but the board might disagree that could include if they had for sterilization forced abortions the board will have to decide whether or not those things occurred did the individual testify credibly that will often be dispositive of the removal proceeding and i can go on with a list of different issues for example was the individual convicted of the particular crime or was it somebody else with the same name those are factual disputes that the boards are resolving or that the immigration judges in the st instance and then the boards are resolved on a daily basis traduced along similar  lines the question we have here is reasonable diligence that the big question and when that's reviewed under one thousand two hundred and fifty two where it can be reviewed my understanding is that courts of appeals review that for abuse of discretion and that would typically be the case in a lot of questions where diligences is the issue the courts of appeals were review that per for abuse of discretion if that's right and just suppose for a moment that's right all right let's argue about that let's suppose that's the right standard of question of why that is reviewed to know but if the court is accepting the premise in the court disagrees with us which i don't think it should but if the court does disagree with us what this court still holds is to the extent that there is deference or discretion that wise with the board still the proper way to approach section two d in these context is to determine whether or not the individual has shown their legal eligibility that two d provides review over the eligibility for the ultimate exercise of discretion so even if reasonable diligence is discretion i don't think it is but there would still be the question of if they've shown the threshold step of being eligible and yours decision familia in the th circuit i think clearly established how even when there is an underlying discretionary determination there i think i did everything i could do avoid this question in that case and i think you know that but i guess i'm just trying to disentangle what would be available for us to review legally versus what would then be left to the board the discretionary decision if in fact we review the case for abuse of discretion in our legal view you know where i think abuse of discretion comes in is not at the question of diligence it comes in with whether or not or chooses to reopen the case the board that isn't a sort of decision that we agree the board has discretion as to whether or not to reopen the case i think diligences this court has said in bank of columbia and i can cite five more cases that is a pure question of law but when the board decides a case in a different way and says we're deciding this as a matter of discretion we're issuing what the board calls a discretionary denial that is the sort of issue that is not subject to judicial review and when the board does a discretionary denial that is very clear on the face of it and let me just provide an example we just went and found out recently i had decision from november st two hundred one thousand this is matter of ca as stevie and the board said quote we conclude that respondent does not merit a favorable exercise of discretion quote the equities in his case are insufficient outweighs history of very serious and violent criminal conduct when the board is exercising its discretion to make a discretionary tomorrow it says so expressly on the face of the opinion we agree that none of that exercise of discretion when appropriate is reviewable and that could be the case with a motion to reopen where the board does have to scratch but the board did not exercise that discretion in this case it found that he was in eligible mentioned which sound awfully factual you know extreme cruelty whether there is unusual hardship whether there is change country conditions all of those are reviewed generally with a highly deferential standard suggests that that everybody's aware that most of the work is being done at the factual level and the application of the legal standard at the end is is it's not where the action is and given what justice ginsburg was so you can about congress's intent here which was pretty clearly to withdraw review power from large categories of cases except the ones that were principally legal in quality you know why why doesn't that suggest that you're putting too much in this reviewable basket you know to the extent those questions as you say are driven prince will be by the facts and the legal work is only doing a little tail at the end then that would be true on appeal as well the legal work would not be doing a whole lot and the decisions might be established by the facts that would be found by the board would not be reviewable but let me provide an example where i think it is heavily factual but i think we would say that we view would be a question of why assume for a moment in  there's a question of past persecution which is very important silent cases persecution is only defined as a threat to one's life or freedom and past persecution praise the presumption of future persecution the board takes a case they properly state that standard then they find these facts individual was imprisoned in a particular country for a decade because of their membership in a political party that is a classic case of persecution but then the board concludes this individual was not subject to past persecution well what do you do with that case the board said that they properly they identify the proper standard they found the facts and usually the facts are going to be dispositive but there at the end where that the the wall issue came in was only a very small part of the case but turned out to be dispositive i think the government even agrees that in circumstances like that for judicial review to actually be substantive judicial review there would have to be review in that case and we think that is critical for the court to recognize in cases like that there is you dish a review on the statutory history point that justice kagan raised saint's cyr involves what the court characterized as pure questions of law congress we know then comes in and there are a variety of statutes as you're aware that refer to mix questions but congress in the statute does not refer specifically to mixed questions so if you put those two things together you would mean toward reading the statute to refer to what one might call your questions of law created and that amended the nine the zipper clause in a way to deal with all of the issues that arise in immigration and there it speaks of law or facts so we know that congress often speaks of law or fact to be inclusive of the whole universe but the nd point is in order to respond to st cyr what congress knew it was attempting to do and this is shared ground of the government was take the scope and an existing a b s jurisdiction that was occurring in the district courts keep that scope of jurisdiction the same and move that jurisdiction into the courts of appeals for the history there your honor is that earlier drafts had included the term pure questions of law that drew a specific objection from commentators during the markup process and after that objection to the word pure was lodged congress then struck that court but they said that was because it was redundant that was in the conference report your honor and if this court is going to look to the conference report right think this is an area to be skeptical because what congress actually did is far more probative but if the court looks to the conference report i think you look a couple  sentences later where the court over the conference report says what happens with next questions you review to the extent legal elements we think that sweeps in our rule but again i think when the language actually appeared there was an objection and it was withdrawn that's a little bit more probing of them of the conference report reasonable diligence for mr right st it differently in my own whether the existence of adverse circuit precedent serves as an obstacle to a firing that's highly motion to reopen that's i think that's a broader way of saying diligence in the circumstances is not an appropriate way to undertake the diligence inquiry so i think that that cases is focused on whether or not the board's application of an eight month per se wall violates the underlying principles of reasonable diligence mr hughes you haven't spoken much about the presumption of availability and i just have a question about the nature of that presumption and i guess i would like mr lew to answer the same question do you think that that presumption is a presumption about congressional intent or do you think that that presumption is a presumption that's meant to reflect other values i think it's it's both and i think it's a presumption congressional intent but i think it's also a presumption that's meant to reflect the appropriate balance between judicial power in the administrative power because of course here if the court finds that questions are factual factual and therefore assigned legal work to the administrative agency the effect that that has is ceding authority from the article three courts to the administrative courts to have more authority to be able to side whatever tail legal aspect there is there so i think the presumption of review ability goes to not just a congressional presumption but also a separation of powers principle thank you we know that from the text of the provision itself which doesn't mention questions of fact or mixed questions but we also know it from the context in which congress enacted the privilege in st cyr this court held that denying criminal aliens of a judicial forum for pure questions of law would raise constitutional doubts when congress enacted this provision following sincere it wanted to provide criminal aliens enough judicial review to avoid those doubt but no more questions of law this refers to the same questions identified in this court's decision in st cyr pura questions of law now petitioners would read questions of law to extend far beyond purely legal questions to encompass every mix question of long fact but next questions are mentioned in the text of section two of the two a two they're not mentioned anywhere and since you're either and construing questions of the law to encompass every next question under petitioners reading criminal and non criminal allianz alike we get judicial review of all classes to show claims of all questions of law and of all mixed questions the only difference in the judicial review that they would get would be limited to the category of questions of fact as some of the justices of this morning have already noted that difference would be this whereas in criminal cases involving criminal aliens the board's factual fin conclusive whereas in cases involving non criminal aliens the board's factual findings would be conclusive almost not supported by substantial evidence now that's a pretty subtle difference given that courts don't often overturn factual findings for lack of substantial evidence and if that's the narrow difference that congress really sought to achieve one would have thought they would have written these with the revision the original version of the statute had pure questions of law and to pick up on your point on the statutory history then that's deleted and deputy assistant attorney general cone testifies and says a mixed question of laws in effect a question with two parts the legal part in the factual part the legal part of course is review that's what the justice department said in response to the a c l u s objection to the draft right was that correct we do think the legal part is reviewable but i think it's important to understand what we think that legal part to be that legal part is the same part of this court identified in lake ridge it is the legal test or standard that the board used in deciding the case i think congress was pretty justified in thinking the word  us and just as a matter of ordinary english you know a question is a mixed question because it involves both law and fact if you leave off the words and fact and refer only to a question of law that's an unmixed question  mr like to poke at that just a little bit and returned to justice leaders question at the beginning of the argument sure it is the government's position that only pure questions of law are reviewable or is it also the government's position that there can be some applications that are so egregious that they would rise to the level of being questions of law it's the former position so our view is that only pure question ok if that's the case is there any judicial review here meaningfully at all because all the has to do is recite the legal standard and we become a rubber stamp and say yes they have recited the correct legal standard and no matter how unreasonable no matter how crazy the application is we have to provide a judicial imprimatur to that decision does that does that cause any concerns for you for the government and what about the that every case is going to involve an already settled legal principle there are actually issues of st impression out there and when the board decides those legal questions those are reviewable in the courts of appeals now there are going to be cases where the  legal standard has been settled like it is in the in the case of reasonable diligence it's very easy for the board to know what the applicant pool standard is in those cases when the board does state the a political legal standard that is except in very rare instance that i think justice alito alluded to that's going to be the end of the matter no you backtracking i think a little bit is is it just resigned to legal standard the pure question of law correctly we're done or is there some answer the question in our view the court can never review an application of law to favor never review that what it can do is make sure the board use the correct legal standards so if the board says that the standard reasonable diligence but then it goes on to cite cases from a bygone era where the standard was maximum feasible diligence and says up we're going to apply this case very apply this case that the the court doesn't need to review any part of the application of lot of fact i understand to know that the board has used the wrong standard suppose that the issue is whether their works optional circumstances might justify equitable told one and let's say the the alien in question was in a coma what would happen there no judicial review and they said well that's from exceptional circumstances well i think to the extent the question is as a categorical matter is being in a comma an exceptional circumstance that could be a question of why i mean take take that's this court's decision in holland versus florida i think the question there was mr if you if you accept that haven't you given up the ghost then we're just into deciding whether the application given these facts is or isn't reasonable diligence is a matter of law i don't think so i mean i think invest and i wire coma's special well they they very well might not be but i think it would be a declaration of a legal principle to say they weren't special just like and versus florida when this court said you know the th circuit had applied an overly rigid rule regarding attorney misconduct i understand that to be a legal principle so house went different from the case here there i think everyone's trying to ask you is hurricane katrina blows the courthouse away ok the standard is you have to file within fifteen days but there is no court house it's blown to florida and so the question was that the standard says an unusual circumstance writing the court says if it's an unusual circumstance well then extended all right we agree katrina blew the courthouse away but that isn't an unusual circumstance that no review isn't that i mean that's what we're trying there's  review and i know review but my goodness if we look at the cases i mean then you've taken from the attorneys for the person who's trying to get review any kind of check through appeal on the action of a district judge now that's of i can't think it's pretty hard to find statutes that do that in a country that has a presumption of judicial review i think it's pretty difficult to read same series saying that when congress made statutory what it thought was the standard of st cyr and included review of mix questions of fact in law so i mean if that's actually your position it's on bounded and i don't get that i think to determine what is reviewable and what is not under our position if you look at the type of analysis that's required to valuate that claim so they're going to be certain claims that entail when you're purely legal analysis you look at the statute you interpret it there's no need to to have recourse to those particular how is the katrina hypo different from the coma hypothetical you said once reviewable and ones not reviewable i think if i heard you correctly well i think it's because to answer the katrina hypo we would need to know more about the circumstances surrounding the storm and the particular circumstance a litigant in trying to overcome what would you like to know i'll tell you the courthouses in florida well but this is again by the way has never been able to walk more than one mile and his car has been blown up right but this is exactly my point i think those have those facts are extremely helpful to answering the question oh and and it's because i need those facts answer that you do i thought that your your answer was that at some point the factual mistake  becomes so egregious that it reflects a misunderstanding of what exceptional means rather than a misapplication fact which correct me if i'm wrong because it does lead in to justice course which is concerned that you know you've kind of given up the game because then it's just a question of how exceptional is the fact right now which peak it begins to look at once you say that it begins to look like your standard application of a lot of right and i guess mr chief justice i want to draw the line in terms of how  the air as i think that doesn't invite this sort of review of the application of lot of fact and in order to determine whether there's been an error of lighting that's sort of a reverse engineering and run around that statute what i really mean to say is if the question can be answered through purely legal analysis then it is a pure question of law or here is a difficulty that i think is really a difficult question i didn't think the other that i asked was so difficult but this one i think is i mean i learned years ago that you can absolutely distinguish the factual part of a misc of a mix question from the legal part and i also learned that no class is able to grasp my clear understanding of th i also learned that there are many lawyers and probably even more judges that find that difficult and there are many cases that are mixed up in that respect is that a coerced confession was there in fact you know are loads of them ok now the difficulty is that sometimes it's important and sometimes it isn't and sometimes it's easy to separate out and sometimes it is and so rather than produce just a confusion in the lower courts and in the bar by saying the legal part is but the factual part is why not read this as say when they say questions of law they mean to include mix questions of fact in law and leave it at that just as saying syria did just as those statutes you quoted did and that's the end of it everyone can understand it and of course if the district judge has discretion well then the right question of law will be did he abuse his discretion pro we just don't think that's consistent with the text history excess questions of law and i can find statutes that use those words and they clearly mean both i  say i think i think that the best reference point for what questions of law means is twelve thousand five hundred and forty two which which this court itself as applied in a pretty principled way to distinguish your questions of law next questions i mean identifying quest here questions of law is something appellate courts are quite used to doing and the phrase questions of law is like the term jurisdiction it's used it means lots of different things it's used sometimes rather sloppily and it's asked for different purposes so i don't get anything out of the arguments on either side about what is meant by questions of law in general the question is what congress meant here i think that's just i think it's fair to look at the context in which congress looked wrote this statute that as i said at the outset i think the context here points in a very clear direction i mean this was a congress whose primary policy preference courthouse has been blown away by a hurricane if if you posit a lower level decision maker who's either a monster or an idiot then of course you're always going to think that there's a case for judicial whenever judicial review is cut off you open up the possibility that there's going to be a decision that would otherwise be reviewed that seems really really wrong so you have to you have to make the argument that this is what congress wan appeal and taking the district court out so that i think i think that's half the equation i think part of the actually that's a year or more you know in many cases that's cut out by doing that so that's significant saving of time but i think i think that's only have half the equation the other half is in the types of decisions that the in the context point that you were just referencing to what about one thousand two hundred and fifty to be nine that seems important that's amended in the real id act and that refers to a universe where you just have questions of law and questions of fact in this statu if you look at that it doesn't refer to mix question separately the only thing excluded arguably the argument goes is questions of fact but anything else is a question law and that's reviewable when you combine your statute the statu the nine i think being nine which refers to all questions of law and fact is just a natural way of referring to all three categories and we are talking about questions of law next questions of law and fact and questions lew there is no question that we have a presumption in favor of future should we be correct yes now you said that the way of defining congressional intent i don't actually think that because i think it's much broader than that it has to be a presumption that we will avoid what sincere pointed to is a constitutional problem or a statutory problem because sincere was saying interpretation of the statute and so if we take that statement with the presumption we know that congress wasn't intending to remove by not including the application of laws to settle tax we don't we don't read that line in st cyr to be referring to the application of law t and ninety three the court itself uses application to describe the pure question of law in that case and then in part three where the court actually addresses that question and uses the word apply or applied or application no fewer than eighteen times to describe the retroactive  neither side all the way home can't possibly the analogy is this is similar to justice alito there are really different contexts on both sides the legislative history is basically you can't if you don't have a clue what it means sincere can be read multiple ways so all of those i mean you have arguments and mr hughes has arguments and but none of them really seem to carry the day and that suggests to me that the presumption of review ability should carry the day and why isn't this the classic case in which i think it's just clear and so the presumption does the work and you would lose well to answer your question directly we do think it's a presumption congressional intent we think that's reflected in the block nutrition case but i guess i maybe i'm just going to fight the premise i mean we don't think congress is intent is that all ambiguous here that that we get to a point where you need to put out on the scales in favor of you to show well i take that point i mean that's why i asked about what's the nature of this presumption because of this presumption is only about congressional intent it has to fight against a pretty strong sense that congress wanted to do something significant here about cutting off review for criminal aliens but if this presumption is about more than that if it's a presumption that sort of stands in for important separation of powers principles then that response isn't quite good enough well i think at the other day the presumption if we know anything about it is it's not a sort of magic words requirement and i think this is a case where we know exactly what congress was responding to we know the goal it alternately wanted to achieve and we know it wanted to achieve that goal as far as possible and i think there are good structural reasons to think my friend presumption very interesting and deep question that i have a maybe you have a view on this i have always thought that it is really basic it is the presumption that issuers every person in the united states of america that this government will not harm that person in ways that are unlawful unfair arbitrary capricious unconstitutional or an abuse of discretion and that if you want to have a country that has a government that is under control there is no better way i'm not saying judges are perfect but that separation of powers is designed to provide a check to see how basic i said this and i think  i don't think the separation of powers is a concern for us i mean what congress has done in this provision is preserve judicial review over the most important question but i don't think that quite gets to justice prior's question fairness  forget about the statute isn't the presumption preemption really i mean it goes back to the common law that the king can't act arbitrarily without some checks some review some opportunity to be heard by citizens isn't that where the presumption really comes from and isn't that pretty fundamental to the separation of powers and due process and those consider i don't dispute any of that what what i would say is saying steer cashed out all those concerns in its constitutional ok but for but but review in those circumstances and go up to the limits that this court identify the constitutional doubts that this court identified in st cyr the congress is able to do so and congress knew about this we know that from the u objection in the back and forth and the deletion of pure and congress could have easily written a statute that would review of questions of law no review of facts or application of walt to fact and use that kind of phrasing and other statutes that would have been the clear language that i think you're looking for i mean i think that that language would have been equally clear but i think congress thought all it was doing was tracking this court's concerns in st cyr which were focused on the availability of judicial review for constitutional claims and pure questions of law now i think the problem with my friend's position is it would reduce this difference and his only safety valve is to say well some of these mixed application decisions would be discretionary and therefore not reviewable that's just not how the statute works and i think is relying on  don't think that's a solution to the problem you see this playing out in the th circuit where we've read questions of law to include every mix question of law in fact and what that's done is that it's gutted the application of the discretionary do not have a bar because virtually everything that you can call an exercise of discretion you can also describe as involving the application of law to factor in of questions of law are an exception to that bar then you're not really left with with much that's protected from review so i  position they would have this court tell have courts of appeals start trying to distinguish questions of historical fact from next questions of well you know of course this court has experience with that i mean this was the regime because factual questions got a lot of deference and mixed questions and legal questions didn't and there was a whole line of cases that this court decided trying to put questions on one side of the line or the other the line we're administer and they've been doing and many other contacts i think just of course that you mentioned the lay of the land in the courts of appeals it's absolutely the case that all  ten courts of appeals have addressed the standard of review that applies to the very issue here that is reasonable diligence for purposes of acol tolling for purposes of seeking to reopen removal proceedings that determination is reviewed for abuse of discretion when this bar doesn't apply and so the petitioners reading would create a mismatch in one of two ways either we would be labeling as a question of law something that would otherwise be reviewed for abus discretion or we would be reviewing to novo something that would otherwise be reviewed under a highly deferential standard i don't think that that's really a tenable position i think what the what those cases teach us is that the issue here is at the very least a primarily factual next question lou on the way i work my way through it and i want to give you a shot at it used to say that when we have the abuse of discretion standard  often mean really two things one can abuse the discretion by a clear error of fact finding and one can abuse one's discretion by misapplying the law and both of those can be abuses of discretion i see breaking down in the into those two camps and what i'm applying the abuse of discretion when i used to apply the abuse of this discretion stated view and the facts were agreed upon then became in my mind a legal question much as it a great deal of exercise of judgment behalf of whoever is conducting the inquiry you are taking in all the historical facts you're looking at them as a whole you're balancing one against the other there are judgments made throughout the process  so you might you might label one thing or the other but i think when you get down to what the actual nature of the inquiry is it is one that's bound up with the facts of the case and i think the teaching of this court's opinion in  part of a mix question where you can't unwind the factual and legal part that is there is a part where they are so intertwined that the best you can say is well this is either primarily factual or primarily legal  it's those next questions that i don't think congress was trying to give judicial review of because if that were the case there really wouldn't be any any difference between the review that the criminal aliens got and the review that the th for you've mentioned sincere in congress who just responded to that but isn't it true that the courts of appeals in the wake of that decision reviewed next questions before so after st cyr before the relied well only four courts of appeals did i don't think that's a broad enough consensus for this court to apply any sort of congress indicated we struck committee indicated awareness of those decisions i don't think that's right if you look at the passage of the conference report on which petitions are a lie put aside that put aside that is  go back to the courts of appeals to solutions they had reviewed mix questions in that interim four of them had that's that's that's far from the sort of consensus i think congress was focused on there's no indication congress was aware of those decisions and all those decisions rested on reading of one line of st cyr which as i said is mistaken i mean if you even if you look at the at the decision cited in that line it's footnote eighteen you'll see that each of the sources cited involves a pure question of law that is a question of statutory construction so i don't think the word application can can bear all that way thank you counsel five minutes mr hughes think that's an important starting point and when congress created section two the it must have meant for more than just whether or not the board used the right statement of the standard it must include whether or not that standards used the nd point is jurisdiction rules particularly rules like this that are often implied applied have to be clear there needs to be clear direction to the courts of appeals as to at the outset of a case when they have jurisdiction and when they don't have jurisdiction the rule we've offered provides the court a clear test the government by contrast if we set aside its extreme position the position that would be you look at the boilerplate only there is no test the government has offered as to meaningfully distinguish between whether or not a standard was actually used and whether or not the standard was correctly applied because the courts need clarity we think the rule that we offer is by far the most suitable and an appropriate rule that will allow courts to adjudicate these cases as they arise rd and finally if there is any doubt here i think the presumption of judicial review is quite important this does bear not just an underlying congressional intent but core separation of powers principles that the of if there is going to be any delegation of law making authority to the agencies that certainly needs to be clearly stated by congress so any doubt as to how the various statutory interpretation factors in the history in st cyr all apply to the extent that that is awash in don't think it is we think it strongly favors our position but that would strongly favor applying the presumption and ultimately concluding that there is a review over the application of law to facts so ultimately our rule is necessary to fulfill the promise of judicial review in the promise of judicial review that's undeniably created in the statutory tax it's also required to be a fulsome response to st cyr as the case is in the wake of st cyr as well as the priest seventy nine dollars cases that we identify are briefs make clear there would be substantial suspension cause problems of the court if congress had not in the real i d act included the application a lot of fact but then finally ultimately our rule is the one that is clear that is manageable that gives a workable test for the lower courts they'll be applying this hundreds of times each year starts and stops and it's the one that's ultimately true to the presumption in favor of judicial review in the event of any ambiguity thinking or thank you count so cases submitted