i would like to begin by addressing several arguments that were made in a letter from the attorney general that was submitted to the court where this week in that letter third circuit decision is cited for the proposition that the court does not have jurisdiction to decide whether to be a burden in finding that mr ventry was not eligible for relief under section twelve twenty nine b subsection a  the third circuit reasoning i think went something like this the issue of abandonment is a factual one and that therefore the determination of whether the question before the court as we framed it is a little bit different it assumes although elsewhere we argue that the abandonment determination was erroneous and we spend most of our brief talking about that but even assuming that the aban determination was correct just as a matter of logic every alien who is applying for cancellation of removal has just been found removable and so cannot meet the definition  in section eleven zero one eight twenty of a lawful e admitted permanent resident that definition speaks of being accorded the privilege of residing in this country permanently that the time the immigration judge found that he was removable and on that very same day he filed his application so we think that he does qualify for that element of eligibility under that non discretionary decisions that were made by the i j specifically her refusal to allow mr eventuate to examine the confidential informant that is critical because he held that the due process principles and i'm quoting from the lopez a month or case due process principles prohibited immigration judge from declining to hear relevant testimony because of a prejudgment the witness credibility or the probative produce value of the testimony i think what happened in this case your honor is that at this point in the hearing the immigration judge had prejudge mr van train and had determine missionary's well abandonment is the government the legal question for the court is not it's whether the government met the burden of proof by a clear  and convincing evidence did the government just as a matter of law submit clear unequivocal evidence that mr ventry had abandoned his legal permanent residence that's the initial issue that we spend most of our time on it affected credibility on the solicitation issue that might have spilled over into his credibility and other issues and there were there were plenty and mr venture a was sending him self while incarcerated even if you're even if your eligible we would not actual size or discretion is that mean that we have no authority to rule we have to dismiss yes but the  the the legal point to this before the court is the to the exercise of discretion is based on a calculus of a number of different factors and one of those factors is mr adventurist credibility a cross the board i agree that my there may be something else left for us in the the ruling but on the cancellation issue you agree that if the board exercises its discretion that we cannot discretionary issue and there is a discretionary component that's not what we're asking to be reviewed we're asking to be reviewed the due process issue related to the compositional format which if decided our way could have affected the discretionary issue by altering the could have could have and i think we don't have to prove it that you know beyond a reasonable doubt that it it would have we have to prove that it could have it may have and that's the language that's used in the well the the investigators who testified against mr ventry testified not only about the conversation mr ventry had with the informant that was tape recorded but also the conversations that led up to that conversation and those  evidence compels a finding that when mr van trade kidnapped his daughter and took her with him to italy she had a continuous uninterrupted intention to return to the country this certainly has jurisdiction to review under the substantial evidence the question of intent and just to run through the points upon which the board relied in finding intent to abandon the permanent residence you know we submit that the factors you know clearly support the board's determination here first mr bines freight illegally took italian tribunals certainly were highly probative of his intent when he went to italy and there was additional evidence that supported the event in the claim namely the that he allowed his house in the united states to finding that he had intended to return to the united states within a short period now with regard to the relief phase of this case we s minutes for permanent residence as one of whose has the status of having been lawfully accorded the privilege of residing permanently in the united states as an immigrant in accordance with the immigration laws such status not having change when an alien abandons permanent residence status by definition their status has changed and this is not the same as your garden variety of case court need do not even consider the discretionary component or the due process claim that petitioners pressing with regard to the confidential informant evidence been raised here but it need not do so because mr vantine cannot show prejudice based on the admission of the evidence concerning the confidential informant because the board relied asserted  bearing on her allegations of domestic violence and the case just this court held boil down to a credibility contest between the alien and attacks of who testified concerning certain drug transactions that she was accused of having engaged in the discretionary the board's final discretionary analysis in this case did not hinge on the credibility contest between trait and anyone it wrested the board wrote that mr von tres strongest equity in support of his cancellation claim was his relationship with his daughter property or ties to the united states and the board also considered that his guilty plea to the international kidnapping charge was a significant adverse factor in his ca none of this turned on a credibility determination or i believe so because the finding is that he abandoned before he came to the united states but it wouldn't make sense for an immigration judge to address that issue before  address relief before tackling the threshold issue of remove ability there's no reason to consider relief unless the alien in fact is removeable and the entire case hinges on the finding of remove ability court to affirm thank you very much  just very briefly i have vandeman issue the sequence of events are these mr ventry went to italy in one nine hundred ninety eight he'd been there the year before with his daughter in ninety seven and returned it was a vacation he went ninety eight o ten month business trip and the evidence of that that was the intent of the trip is undisputed there was no evidence that came into the country when he goes to italy and he admitted that he should have in writing notified the mother he didn't do that and as a result she started the custody battle he fought that battle in the united states as well as in italy he he did not have a lot of financial resources but that's not a factor to be held against him i mean he didn't have a lot of property in the u s and in a property in the in italy either and he could not afford to go back and forth on this custody battle but he did make a good faith effort to hire a lawyer in the united states and that lawyer as we point out in our brief when he spoke to mr ventry mr vent send correspondence to my house in the united states he would have said that if he thought that he was no longer residing in the united states and there's other evidence on the abandonment issue that we think take it well outside the clear unequivocal convincing find that he do in fact abandoned the government minutes standard assuming that he did it banned and i think he still intitled to relief under the first provision dealing with legal permanent residents because he had the privilege of being a legal permanent resident all the way up until the time the immigration judge said on august twenty sixth two thousand and two i find you removable the standard for abandonment is not it's not a finding that he intended to abandon his legal permanent residency it's a objective standard that says you when you want to broad and you didn't have firmed up plans to return in a quick time and therefore we regard you as having abandoned well that that  resulted in his later loss of the privilege of the privilege of being a permanent resident just as a crime committed years ago may result of aggravated felony may result in an an alien being inadmissible later on