castro respectfully requests that this court review and reverse an order of the board of immigration appeals denying his motion for reconsideration in the alternative mr castro request that this court reinstate the remaining balance of his voluntary departure period which is twenty days this court recently clarified the voluntary departure period issue and barroso so i will discuss that issue first as we explained in our rule twenty eight j letter but also explain that and voluntary departure period is automatically told once he files a timely motion for reconsideration during his voluntary departure period that is exactly what happened here mr castro filed his reconsideration motion just ten days after being granted thirty days in which to voluntarily depart from the united states the board nonetheless held that mr castro had already violated his voluntary departure period and therefore was ineligible for human flesh and of removal that ruling is clearly erroneous under barroso and must be reversed furthermore mr castro is being fundamentally prejudiced by the board's error because he is now having to suffer the harsh consequences of violating a voluntary departure order that he has never been given an opportunity to fully comply with for this reason we're requesting that the court out a minimum provide mr castro with twenty days to voluntarily depart from the united states on the primary relief we are seeking the government does not dispute any of the merits arguments that mr castro raises and his supplemental opening brief the government essentially concedes reversible error but claims that this court is powerless to do anything about it the government is wrong under eight u s c section twelve fifty two this court has jurisdiction to review a denial of reconsideration motion and the government concedes this on page two of their briefs the government also concedes that mr castro filed a timely petition for review of his reconsider his order denying his reconsideration motion therefore this court does have jurisdiction to address the merits of mr castro underlying decision and found that there were no errors and in fact it's a review of the underlying decision does reveal that there are at least four significant errors that constitute an abuse of discretion the board failed to recognize certain record that mr castro son has in your relationship with his mother in fact the only evidence in the record is that mr castro's son has does not see his mother the other errors in the underlying decision is that there is evidence in the record that mr castro son is bilingual however there is no evidence in the record as to the proficiency of his spanish speaking ability at this point the son is twenty motion he's going to a community college at this point and there is not this is not strictly relevant but i noticed in the record that there was some call it encouraged him to be a better student i mean how are his grade no evidence in the record that he would be sufficiently proficient in spanish to be able to go to school in mexico and successfully complete college in mexico given his proficiency  correct thanks to a response to that first the legislature has determined that the exceptional hardship can apply to a child that is twenty one years old or under so he still falls within the range of where the hardship can apply all that's all discretionary and mandatory correct and the other thing that the board did not consider is that mr castro son is completely financially and emotionally dependent on mr castro so that at this point if mr  then when i asked ok so what where is the discretion in a way that leads us right back into the merits of the hardship determination which if it were directly appealed to us we have no jurisdiction whatsoever the underlying decision directly and this court cannot substitute its own discretion of the balance of hardships but here all that mr castro is asking is for the board to reconsider its earlier decision under the proper legal framework of considering all of the relevant factors disregarding irrelevant factors and deciding all of the factors cumulatively rather than isolation under reconsideration standards this court has jurisdiction remount the action for that determination the other and again i think it's remarkable that the government does not dispute any of these merits arguments but instead relie on two jurisdictional arguments that are meritless it see that my time is running out oh thank you your honor then two argument that the government raises is that the court cannot review the reconsideration motion earth the order from the reconsideration motion because it would require the court to review the underlying decision that argument has been rejected by  further the eight circuit cases that are cited in the reply brief also indicate that the court does can review and otherwise read unreviewable order upon reconsider upon a review of the reconsideration motion and the other argument about filed his motion to reconsider within ten days of the board's decision while he had twenty days of voluntary departure remaining and do you agree that under our current law that means he's entitled to voluntary departure twenty days worth time i think it's been changed to where you could be a disparate attorney in the state of california and you could still appear before an immigration judge you know that yeah i mean what  these immigration matters that's what it tells me that we have no standards for him anybody can come in and represent anybody else and everyone knows it and yet we close our eyes and and think that  cancellation application that was denied by the doesn't the board and the court is the government is very well aware of this court's concerns that there's no jurisdiction to review a hardship determination in a cancellation application and would submit that that may be an issue for  decision by this court but barring that there is no review of the denial cancellation of application in this case where the sole denial was because the petitioner failed to demonstrate exceptional unusually extreme hardship s citizen person in this case is son and there's also two other jurisdictional applications in this case being the fact that the petitioner failed to  didn't bring that up your honor i believe that was asked in previous counsel but whether he speaks spanish or doesn't speak spanish is not before the court because that all goes to the determination of whether he met the hardship determination or the hardship requirement as required for cancellation of application well  the government give him a waiver of inadmissibility the help of i don't believe there's a waiver your honor no he was denied cancellation because he failed to meet the hardship requirement is no waiver for a hardship requirement a waiver would be more of a criminal grounds and there is none in this case at this point there's no remedy for the petitioner he spend the night cancellation of removal and he has no other relief well he doesn't have a legal right to remain in the united states and it's unfair is that means same to the court there is no specific requirement that he remain out of the country for a year five years or ten years if you a the other thing that the government did right now during our argument was raise a third jurisdictional issue that was never briefed in the papers and so i have not had an opportunity to research brief and it's the court is going to determine this case on that basis i would request at least an opportunity to brief that issue but i don't believe that that is the rule under this court's case law under eight u s c section twelve fifty t this court has jurisdiction to review the denial of the reconsideration motion and congress has not eliminated that basis through its recent legislation and the government did not really address the other two grounds that  will appoint someone from a lawyer from a law firm and we guarantee them that they'll have the pleasure of pairing before us and arguing their cases and which looks good on the anybody's resume in the future so bear that in mind thank you