the petition has had not met the continuous presence requirement even though they testified that they had entered in nine hundred eighty nine in the n t he wasn't served until two thousand they had the burden of proof from a question that they had the burden of proof with respect to his testimony it seemed that he was full of all this uncertainty about it at one point he said i was twenty seven and then you said no i was twenty nine and so is even assuming even on this record well he he did seem like he didn't remember some of the details around the time that he entered with regard to the age when he entered it looks like when you were reading the record that he misspoke that he got nervous and he misspoke he said he was twenty nine he said it was twenty seven he said it was her that was like he was trying to remember when he was sitting in court what happened was he testified that he entered in june and july of eighty nine there was a one month discrepancy his wife testified that they answered in june and eighty nine and they testified that they entered together now the issue of exactly when they entered the month is really not relevant no it isn't but if he entered when he was you know and i'm twenty seven would have been right at it but he didn't he said that he answered when he was twenty seven and he said yes when he was twenty nine he was confused as to when he entered in terms of his age he knew he answered eighty nine he just didn't remember how old he was when he entered and he said several times on the record that he was nervous so so that by itself i think is not enough to say that his testimony wasn't valid there were other things in this testimony that that helped but what level of education is great fifth grade level of education and i'd like to point out he had no criminal records this may have been his very first time in court he met he was very nervous he said it several times and the judge was making hostile remarks to him which obviously made him more nervous he said that during the quite during the hearing while he was making the comments i have a sort of a more theoretical question for you number of our cases in the asylum contest say that a person's testimony along his mission to carry the burden of proof if they're credible and part of the rationale for that is that it's unrealistic to expect people to get documents from sri lanka or where ever they came from that rationale doesn't apply when the issue is whether they're in the united states because most documents whether it be  agreement or a person coming in and saying i've known them it's much easier to get so do we fall of the same rule about their testimony alone being sufficient or you know do we follow the same rule should we require the same of the agency in this kind of case i think that when you're talking about someone who entered the united states illegally over ten years ago and you're looking for documentation i think it's hard sometimes to provide the documentation and that you're working legally you have you know pay stubs if you're being paid cash you know and you're sort of underground i think it's very hard to find documentation in stores to try and the well someone did kind of an affidavit they did have a witness come in who only had a small slice of that time now well he met them in one nine hundred eighty nine he said he met them in one nine hundred eighty nine when they and they entered in eighty nine and that gives them the ten know only if they're still here continuously but i didn't know if they were he said that he saw them every at least once a year more than once a year for that period of time any time the time they entered until the testimony he said that he continued i think that finding that it was begun in consistent and i think that that that's actually not a fair characterization of all of the testimony the inconsistency to the extent that i could see it was really  you're right however the immigration judge did not have the proper standard at the time that he made the decision and he did create his own standard that the standards that came out of the  they came out after he made the decision and we don't know because he articulated his own standards and we don't know had he used another standard he made a stream an unusual hardship it is but even the slightest possibility that they can meet this you know i think there is a possibility because what he didn't do and what you're supposed to do is look at it all in the aggregate and it was economic educational and medical hardships and they don't have any medical problems but the fact that they could not get the child health care in mexico there is the possibility that in the aggregate they could've found me at least they deserve the chance to have the proper standard is such a high there was a question about himself writing his birthday in mexico in august one thousand nine hundred eighty nine and then he testified that he entered seven to eight months after his birthday i read that testimony after which birthday the system of basically broken down it's not your fault but i have trouble with these cases when the i j a has been abusive because i don't know what i'm supposed to think when i get a witness who starts to have trouble whether it's establish she came in in one thousand nine hundred nine but that in addition to that that there was not enough evidence to substantiate that they had been continuously present for ten years because that statute requires not only that they came in at a certain time but also that they be able to requirement was there any inconsistency in the either testimony about continuous presence i didn't i didn't see any i don't know that there was necessarily a specific inconsistency it at least notify the but i think the board was probably very concerned about the fact that there was a sort of minimal and fake testimony that had been presented and so in order to bolster that what they needed was additional corroborating evidence in the form of documentation and out of those ten years that they were required to show that they were physically present here i believe the documentation submitted accounts for maybe about five years of that period so there's actually a five year period in which there's been no documentation so made it whatsoever to an time that's correct your honor but again i think what the board was concerned was with the fact that there wasn't enough testimony detailing well we lived here at this period of time or i worked here for this period of time i think they were just troubled by that minimal and sort of a testimony that was provided by both petitioners in this case and wanted something more to bolster to be a little more confident of the fact that they had been present here for the ten years that was required by statu are we allowed to take it into consideration as we evaluate the testimony and that is to say give some slack to the person testifying when it appears that it may be confused or having trouble where the person may be having trouble or what the judge is doing that's a different question from whether there's been due process violation right and i think certainly your honour's are free to consider everything on the record including the transcript itself nothing do you have any comment on the hardship showing well i think in this case the boy did not make up finding as to specific to hardship but i think your honest work correct in noting that the immigration judge didn't know what he considered the hardship issue exceptional hardship that's been outlined by the statute and it is as your honour's noted an extremely high standard so that would be answer one i think you answer to is in the event your honour's would find that there's been some kind of error or there's been some kind of a problem with a harsher determination that would be something that needs to be demanded and put first before the agency for them to determine and then if there is any further questions for that point with then again be appealed to  i just wanted to raise a couple of points about the immigration judges bulling first of all there was a due process argument in the opening grief about him not him for going the role of a neutral impartial judge  the questioning and there were some problems there's some big concerns with that one is if there's not enough evidence in the record to support his finding and he's going there and especially the female petitioner and the judge and the ins attorney asked a lot of questions about when they first entered the country but they really didn't ask a lot of questions about the continuous presence and if they were going to say that they were thinking inconsistent on that they should have asked return it to an eye for further evidence ventura we can't do it ourselves so you're your argument is that it has to go all the way back to an immigration judge for a further hearing i think that would be a fair result because then they would get