and ninety two he and his wife fled from the village where they were located and they crossed into serbia and that was in one thousand nine hundred ninety two and they had a small child with them and then over the course of the next year mr yakob which had testified that he had been living in a number of different places none of which were really very suitable for ha taishan but it was all it was there at the time and then along a line because he was not a serbian citizen he was arrested by the police in serbia taken across the the or the police brigade and generally speaking at the time it was considered that there were many better factors in employment being in the police brigade than being in the on i have a question about whether there used any jurisdiction in this court yes the conclusion that somebody who is not is not entitled to stay in the united or extreme hardship reviewable in this court under the real idea act we could we could review the eligibility decision but not the application decision yes and it seems that the immigration judge and the board found both you know which ability and no exercise of discretion in the aliens favor even if he were eligible  decision how could we have jurisdiction all right yet as the judge indicated in his decision on its analysis it's a it's a two step process essentially first he makes a determination argument here is that that part of the analysis is an antecedent to the second part which is board made two decisions you know which will and unfavorable exercise given that he is going to be removed and we can't accept the removal or would be a classic advisory opinion because it can't affect the outcome of well our argument is your honor that you know arriving discretion in your favor and he gave more the reasons for that no extraordinary hardship and committed fraud in order to enter the united states those are grounds independent of whether he is a war criminal yes right and the immigration judge gave those the board of immigration appeals gave them on your argument seems to be that if there is also  trying to emphasize the judge in his opinion referenced very significantly when he discussed in eligibility his conclusions that he derived that in fact although there was no evidence of this fact that not give a child ever engaged in any kind of deployment activities or any kind of military coup or genocidal activities that  she concluded that in his opinion based upon every inferences that the expert witness made when he was asked these questions by the judge that in fact  that he in fact had been engaged in this and i didn't you know personally i think it's clear from the record that this caused him to conclude that and to influence him and to overlook the evidence of record that existed as it related to extreme hardship for the people for the family for the not for the people for the wife the u s citizen why she is the qualified person in a waiver could determination  understand that you argue that the board in the board disagreed with that whether we have a discretionary adverse drug or yes which we can't review well i believe that it isn't going to completely discretionary i believe morales from the circuit and also from mom again non u that there are in fact factual matters that are not discretionary in nature that need to be dealt with in terms of getting to the point where the final decision is purely discretionary and that those truly are not discretionary questions and that the determination of those factual matters is of a non discretionary nature but they can be the prerequisite then as they were in this case true for the judge to conclude that there was not statutory yankovic's to have a waiver considered and i don't believe that a judge's decision as it relates to the statutory eligibility is one that is completely discretionary in nature and is and  is subject not to repeat not for review i believe that the board mischaracterized that aspect of it and i believe that it's clearly distinguish will and his matter of fact i believe that when the judge went to the into his subsequently to determine if in his discretion he would rule in any other way the second phase of that analysis is clearly a discretionary one but i don't believe that the first phase that he has clearly totally discretionary  by reaching that second one he's not making it bulletproof you're saying no i don't believe yes because he you know if he has determined in effect depending on his determination as to what is the statutory eligibility in this case if clearly the applicant has established statutory eligibility for a waiver by consideration of the factual information propounded then in  fact the burden or that the exercise if you will on the second phase of that in terms of exercising any any kind of discretionary denial of that which admittedly the judge could just simply throw out the statutory eligibility thing but if he did he'd certainly have to have very substantial reasoning and analysis as to why he chose to do that in the first shows like an think it is well you must be aware that this circuit is held that it is not well if you want to overrule those cases you certainly haven't asked us to overrule well i believe that clearly the fact of the matter so was every court other than the no are you asking us to overrule those decisions i am your honor because i believe i do you i mean you are i looked in your brief to see if you were asking us to overrule them you can't make an over ruling request for the very first time an oral argument these issues have to be briefed you need to be responsible i understand that you know but i believe that again under this the right set of didn't aspect of the decision making process doesn't absolve around discretionary exercise or questions of but it is clear that there's that the evidence of the the hardship is clearly propounded in a way that that unit as in this case the judge simply indicates that he's choosing to give no w then i think that that's a violation quite frankly of the duty that the judge has in passing the first hurdle of that test which is the statutory only ability to determination and i believe then himself into a position where if he does not and if he actually syces his discretion in a way that is adverse and clearly seems to ignore all of the factual information as it relates to this and unfortunately sometimes you know that's by necessity sort of a way that you have to direct those things but i believe will be overturned and the alternative is not to bring a judge ignored evidence of hardship the judge did consider the evidence of hardship and i don't think fail to mention any of the evidence of hardship he just did not find the evidence sufficient to establish its hardship to the extent that would that well his discussion was that he he gave it very little weight and he based that observation on the fact that he concluded that a psychologist who would render that type of a diagnosis would not be in a position or be capable of doing that if if the psychologist had had one session of some length in which he the psychologist took the history tests back to depression test a symptom ninety test the two classic test for psychological evaluations and concluded that the that the person being evaluated had p no rebuttal witness of any kind on the psychological testimony that he was giving it no weight seems to be pretty contrary to the way in which he dealt with weight from the government expert witness as it related to all kinds of things for which there were no