the board abused its discretion and tonight most of the reopened by applying the wrong procedural standard and feeling to consider new and material evidence submitted by the maldonado's second immigration judges application of the exceptional and extremely determination which under our case law is non reviewable your honor i respectfully disagree fernando's holds that certain issues are reviewable on a motion to reopen and those issues are political here when the board applies the wrong ev it goes on to say the hardship that may result doesn't rise to the level of extremely unusual and like it doesn't it looks like they just consider the new evidence and that every bit of it determine whether or not the evidence was new material and simply that because it relates to issues already considered by the immigration judge it failed to satisfy the evident repair don't think you understood the my question you're talking about the first sentence  and i don't see how there can be anything to congress is your decision about circuit court's jurisdiction if we go your way and say it's enough to be a constitutional violation start  good morning your honor to me please the court my name is thankful vander starr i represent the attorney general in this matter your honor petitioners ask the court to review two decisions by the board and it is the government's position that the court lacks jurisdiction to review both of those decisions both the underlying merits decision and then the denial of the melting on those motion to reopen let me see if i understand your position if i understand correctly we have no jurisdiction this discretionary view the only way because congress told us we don't the only way that we can get this is if there's a constitutional violation that's correct your honor in it your position that your issues be closed in due process just to get around the jurisdictional element don't tell me where that line is why why is it what they're asking for now is a violation of due process of law your honor wear a petitioner contends that he or she did not get a full and fair hearing did not have an opportunity to present evidence to testify did not have an opportunity to prove present their case to a fair and impartial  adjudicator if we have an allegation of immigration judge bias for example that might rise to a level of a constitutional violation but we don't have that here your honor what we have there is petitioners quibbling with the immigration judges and it should be considered that there's a violation of due process judge kleinfeld raised the question that i had in mind there can always be something new lawyers are very creative and i was one  myself i understand that but how do we draw the line when some new argument is being made that hasn't yet been processed by the system and as this court stated in fernandez for example if there were a hardship case and the issue were educational difficulties of the children and then later on one of the children was diagnosed with a life threatening illness and they moved to reopen based on that that would be different enough as opposed to cumulative and evidence that as is a result of the passage of time such that the court could look at that and the board's determination in that situation but we clearly don't have that here the evidence that was familiar with the mostly reopened was cumulative in fact the maldonado's did submit evidence that jose had learning problems initially they chose not to pursue that they said at one point early on in the hearing we're just going to focus on kara that the board could perform its discretionary duty again on the evidence including jose i guess i want to clarify that clarify the hypothetical would in that case would the board have said we don't consider this new board never knew anything about jose far as they know there's a daughter with a speech defect and the son they don't know anything about that was my fault and then when and then when they come along with their motion analysis there must be some principle that says when it's enough and when it isn't and that you and that principal has to make sure to carve out their discretionary area where we have no reopen first of all their evidence must be new previously undiscoverable unable to present it to the i j a because it didn't exist in a situation where someone is diagnosed with something after the case it's already happened before the i j a in the board then that would be new and previously undiscoverable then however the petition demonstrate prime fishing eligibility for the relief if we were to reopen and have an immigration judge look at all of this evidence and take further testimony does that look likely that the case would turn out differently these petitioners would qualify for cancellation of removal would meet the exceptional and extremely unusual hardship standard now under fernandez the court if the board makes the finding that something is not new and previously unavailable the court can review that because that involves a regulatory finding the regulations require that once the board ever makes a prime the facial finding that is where the court can't review the decision so you're saying they have to show they work them wants to show that they look we can't review but if they say they're not looking then we should remain so that they look i think that i think that sounds review but here we don't even have an issue of whether or not this was new evidence they submitted evidence that jose had learning difficulties and was getting special ed they chose not to pursue that they said no we want to focus on  and actually the evidence shows that jose stopped having special ed at some point and then there there was a further evaluation of jose that was really under terminated of as to whether or not he needed to continue misinterpreted the facts regarding jose that regarding care and that that's a factual dispute what's your response to that that she would recover in the same way that holds they did when that was not  consistent with the record what's your response to whether or not that's a factual dispute that we have jurisdiction to review your honor i would argue that that is actually not a factual dispute it's not it eroni is factual finding it's the immigration judges excellent point that what we don't have here is a complete absence of probative facts the testimony of the expert was that cura had some problems but she was doing ok she was doing ok in preschool she was reversed the board to reopen and that's where there was a newly discovered life threatening medical condition affecting qualifying relative and it wasn't there before so with the b i refused to reopen or make a class and you previously submitted evidence that he wasn't doing so well in school it's not like somebody is dying your honor we do not submit evidence respectfully about his condition forty percent how was the best that was doing he was diagnosed with a learning disability congress has mandated that children out of one hundred percent of the children probably forty percent are in the forty look there was there were other findings other than just merely that he was forty in the floyd percentile and he was overall diagnosed with having a specific learning disability with respect to language skills and i don't agree  and you were under the pro bono program that is that you were doing this on your own at your own expense to file the briefs made argument ok we thank you you thank