error in the way that it fails to fully consider the positive factors in plaintiff's favor in making a discretionary decision so you challenging the balancing evidence that was before the board it's not in the way of the factors is that what you're asking us to review no that would be impermissible but what is permissible is to look at the factors that it's to look at what stated in the board's actual decision and to note that they've ignored the favorable factors that were considered by the immigration judge in making her contrary  say that indicated as a matter of law which is what you're asking and that they ignored in the favorable factors well where is that where is that language from the court that basically said that where we could find as a matter of law that there was a violation yes they simply recite that we recognize the positive equities and they recites some of them continuing nature of the fraud and found that it didn't counterbalance the positive factor so i'm trying to figure out what the legal challenges here because it really seems to me like you're asking us to read rebalance the factors it's the junker says holder that this court held in two thousand and eleven that a failure to fully and fairly considered all the relevant positive factors is legal there but how can we conclude that they didn't when they said that they did  mean to be one thing if if the decision was completely silent and they simply said we choose in the exercise of our discretion not to to grant relief here but when they specifically cite the positive and negative factors and and focus on the continuing nature of the fraud as the reason why they don't think relief is warranted how have they failed to discharge their statutory  t it's a good point this petition is response that would be that it's essentially a nod to at well yes we looked at positive factors we looked at there's family ties  but there's a number of other relevant positive factors that are not even mentioned in the opinion and for them to simply say we considered everything but not to state that that that the board doesn't have to tick off everything go factor they just have to say and so that we can tell as a reviewing court on the petition for review that they did in fact do what they're supposed to do in exercising it's almost pretext or what they say we we recognize positive equities but but really there's no there's little evidence that they infected but what you're really doing is asking that we are man to have them rebalance them and then in rebalance them and hopefully in the favor of your client but it because you're not saying they didn't balance them right me really to my second point which i think actually has more force which is that there their sole reliance on the scope of the fraud really what it boils down to was the initial fraudulent married in order to enter but i'm still looking at page four right and they focused on the fact that essentially that the respondent continued to perpetrate the fraud for a period of years by establishing fake bank accounts finally a joint petition to remove conditions on his residence and they supported that with fraudulent letters from friends and family members claiming that it really was a bona fide marriage  even though he never lived with her and the board basically said look this person has been lying for years and is going to do it while i can the board focus on that as a significant negative factor outweighs the positive thank you just tom and the like to address that and first of all i think the board with respect to the board they overstate what the record will bear there was  several letters emitted by one cousin in support of the some fifty one petitioner of conditions just under two years after the initial admission entry into the us and then there was a fraudulent joint bank account and then there's the actual fact of the some fifty one which is claims continues to claim that the the marriage is true but if we look at the statutory scheme edition that he's seeking to remove the two y right yes ok and so if we look at the scheme that's exactly it it's a it's a two year scheme where you're allowed entry and everyone concedes that the initial entry was fraudulent there's no question about that and you're allowed entry and but only for two years and this is with all entries fraudulent on kargil and any entry based on marriages has a two year condition essentially and you have to come back in two years and say yeah we're still married and get the condition removed so if he does not or he or anyone in his position does not file that petition then we're not even here because the fraud in the fraud so are you asking us for a declaration that this was really just one fraud as opposed to a immigration visas based on marriage that seven fifty one petition to remove the condition is an essential part of the scheme in other words i guess what's bothering me is that you  know if it were just a matter of going back to the c i s and saying i want the condition removed now because my loving wife and i have been enjoying our marriage here in the u s for two years but he did more than that i mean he actually  hypothetical you just raised if it was just a matter of him going to the c i s and saying oh my loving wife and i are still together that is no as a functional matter no can petition to remove conditions never succeeds just on the basis of this point this conversation really back down into the weeds of questioning the balancing in which the board gauged and i don't think we get to do that i mean once they are into the evidence of they think it's important and we think last night is that important that doesn't matter we can't say we can't tell them that they missed they must have value added thank you just lecture and my point is it is not precisely that and  waiver that's at issue here will never succeed it's a dead letter for petitioners in this situation ok i think we've got the point you've got about thirty seconds left let's hear from the government and we'll make sure  you got to chance to respond appreciate it thank you good morning your honor may please the court margo carter for the united states attorney general the court should dismiss this petition for review for lack of jurisdiction the immigration and nationality act as amended by the real i d act of two thousand and five explicitly prohibits the  review of the discretionary denial of a waiver and in this case the petitioners waiver was denied as a matter of discretion based on the extensive marriage fraud that he committed the petitioner in his brief to this court raises no constitutional issue nor any genuine legal issue that would preserve this court's jurisdiction instead the petitioner casts the weighing of the factors as a legal issue but ultimately that is exactly what has been determined to be a discretionary finding and they want to put petitioners done is basically claim from reviewing their record that the determination of the fraud and whether or not it was sufficient for a waiver the way they did it was really a knowledge and basically they're saying that it doesn't respect the law and they didn't respect the law that allowed for a waiver well to the extent that the well and ultimately yang the supreme court held that the the statute would only be vitiated if any fraud no matter how minor would cause a denial of a waiver and in this case this wasn't a minor fraud this was a fraud that was perpetrated over a period of more than a decade and it involved the submission of fraudulent documents the the petitioners wife who submitted the i one thirty on his behalf actually altered h tonight as a matter of discretion then you could make more of an argument about it but that's not what's happening here let me ask you question about the citizenship issue and the court said or held as a part of its order that he was and is a citizen of china but the record doesn't establish that as a matter of law and i say that only because they were relying on his attorney and the circumstances under which that took place seemed to me that they could at least argue that he didn't understand what was said because he disputed that and i don't see a discussion of that in the order where that can be found as a matter of law seems to me that there is least the possibility if the court was relying on that statement made by his attorney that he was a citizen and he is not which is what he claimed there is and there's a problem with the order well ultimately that issue has not been raised but on the face of it the statement by the b i a was was unequivocal not just that he was a citizen or is a citizen of china but that the basis for that decision circumstances which are not present here but even so the petitioner in this case declined to designate a country for removal when given the opportunity by the immigration judge and that with on i think page ninety two of the record the petition was given an opportunity to designate a country of remove all the clients designate and the immigration judge and designated china consistent with the admissions of counsel who have here's the here's my problem i fully understand the waiver problem is not really what it is in the ordinary way of looking at it it is waived here because they didn't pilot but it's pretty clear that he's not a citizen of china and when you try to remove this guy to china china is going to accept him so what are you going to do you personally get it's no excuse me so i think you've got an order this is not going to work so if you want to actually want to remove them you better have order to remove them to vietnam where he is a citizen and i think your honor that this takes us to the statute which actually provides for alternative countries of removal in the event that the original country designated in the order is unwilling to accept the petitioner or for other reasons that removal to that country doesn't work out you have to establish that and i don't know what it is and yet you have the experience and i don't but i understand he was born in vietnam but that doesn't mean necessarily he was a citizen i don't know what the situation so he's two chinese parents he was born in vietnam and lived there for a year according to the record and then if you look for example at his father's  naturalization certificate his father is actually doesn't need it as a national of china and not a vietnam so his two chinese parents one of whom is a lawful permanent resident here in the united states the other of whom is a united states citizen at this  point but they were both nationals of china even though they were living in vietnam they were ethnic chinese and living outside of china and then ultimately they returned to china with the petitioner who lived there for the rest of his life after his first uphold it says he is a citizen of china what do we do what if he's not what happens if he is not as a practical matter what would happen when more than a practical matter was a matter of law what happens so if he's not actually a citizen of china if you look at eight u s c section twelve thirty one b two and eight c f r section two forty one point fifteen do you trust has broad latitude to actually select the country are a whole bunch of different considerations that can be considered in order to determine which would be the second or refuse to accept vietnam could could refuse to and i am well there are so the regulations and this statute provide that you can return an individual to two countries based on where their nationals are citizens or are a bunch of other different things and ultimately i mean if nobody was willing to take  you for everyone to have remained to have that issue determined so we don't have to have this this very this great area of ambiguity for everyone ultimately  also ultimately he's removable there's nothing to really remained for there's no the determination of which country he can be removed to is within the discretion of the department of homeland security it's not that's and it's also never been it's never been raised  citizen of china is irrelevant is that relevant even if it's inconsistent or or it's clearly erroneous with respect to the decision made by the way i see i'm out of time your honor but if i may answer your question  it's not that the statement is irrelevant it's that at the end of the day if it if it ends up being the case that they're unable to remove him to china there are there are procedures in place to allow him to be removed to a and their decision on whether or not to allow the waiver if that was a factor it seems to me as i read it it looks like it's a pretty strong factor that i don't know why they would make that statement unless it was relevant to the very issues they simply made the statement in order to clarify because the immigration judge on page one of his decision or her decision and page eleven of her decision had said two things that were inconsistent and the board determined that the second thing that the immigration judge said about the petitioner being a stateless refugee from vietnam was clearly erroneous because it was unsupported by actual evidence in the record beyond an errant statement of the just more of the  petitioner but at the at the end of the day his counsel had already conceded at that point that he was a native and citizen of china and it wasn't it wasn't a outrageous conclusion to reach given that his immigration proceedings were held in mandarin his parents  if i may just very briefly target the decision the supreme court's decision and i and it's versus john that's been raised i think in both parties briefs and that was a seminal decision and that decision that up until that point this court had been essentially espousing petitioners position that you can't consider the initial marriage fraud as a negative factor and this report said yes and i'd like to thank you did yes and now not to not to take care not to jump in with both feet do we know that they do say that but i'd like to distinguish that because they see that you can consider it but the factors in young maybe allow you to understand why they came to that decision because they were so egregious there there were two sham court even cited in its statement of the record there were other factors although they don't really what they what they were this was well beyond just and council has set forth the government's position that this is a complex fraud