they please the court your honor is that the agency gave no consideration to the petitioners lack of criminal history this in of itself and alone requires of case be remanded to the agency pursuant to to an alien's lack of any criminal convictions is always a relevant positive factor for moral character determination and neither the i j a nor the beyond a set a single word about it in their decisions so do you think this was error just in how the agency applied its discretion or do you think there is an actual legal error here and if so what's the legal heir or the legal areas that they didn't consider in my opinion they didn't consider one positive factor which is the lack of of any criminal convictions and they did improperly consider one negative factor which in my opinion is using the investigation by child protective  services where the children were taken out of the home for three days while the investigation was completed after the the girl sylvia had an accident and child protective services found that they didn't do anything wrong at all and yet in the a decision that was considered a negative factor so after rear the illegal immigration reform and immigration responsibility act we don't have jurisdiction to review this discretionary determination  you don't have jurisdiction to review how the relevant factors are weighed i believe that you do have jurisdiction to review whether the relevant factors work and  the lack of a criminal history at all and that is clearly a relevant factor in any kind of moral character determination always has been always will be and then they did consider as negative factor that the c p s investigation which amounted to nothing which amounted to no finding of wrongdoing at all and so you know your jurisdiction is is limited here in n and the agency does have the right to weigh the relevant factors as a chooses to but where you see a situation such as this where the relevant factors aren't even properly identified then you do have jurisdiction to remand the case back the agency with instructions to properly consider the relevant factors i guess i'm not really clear on your your position here i thought the main thing that the i j a relied on was the false tax returns they did they did that was a negative consideration well ok but that and that would be fully sufficient on its own to say that somebody lacked good moral character when that they cheated the federal government out of money that they weren't entitle to by line on their tax returns for a period of i think it was eight years or something like that i mean you're right that there are no i guess there's no criminal convictions for either but on the one yeah ok but so you're just saying because that be i never expressly mention that fact and no investigation or no problem by the i r s with these tax returns well there could have been though right i mean sure is there any dispute that there was were misstatements on his tax returns and that they got refence they weren't owed not at all they were inaccurate so the b s a says she's in light of that fact we don't think you have good moral character that strikes me as the classic discretionary call that we lack any jurisdiction to review but absent some constitutional or legal error and only thing i've heard you say is that well they didn't mention that my clients didn't have a criminal record that doesn't strike me as a valid basis not regard jurisdiction not just mentioned but actually consider actually w all i can hear you say is that well they didn't say anything about it and so therefore they've committed a legal error and i don't see any basis for assuming well how can you assume that they did well they said we agree with the immigration judge that the factor is reflecting adversely on the respondents moral character outweigh the positive factors in their case and then cite pages of the i j a opinion so it does sound like they looked at all the factors we do we have any case that says they need to list them all they don't have it's not a question of  ana what was your question again i just don't know how you can tell i'm wondering where in the b i a opinion you're arresting the argument that they made a legal mistake i'm still not sure but i don't think they mean i don't think we have any case that says they need to list every factor well they don't have to list and make an exhaustive list of every possible contingency but this is an obvious one this is one that should always be considered in that you always wait to alien's benefit when he has no criminal convictions and the analysis is about his moral character so you know i trace the next sentence is the additional factors raised by respondents on appeal relate to the issue of hardship and then are not material to the issue of respondents moral character do you know what factors the agency was referring to when it said the additional factors raised by respondents on appeal my guess is that they're referring to hardship factors that were history no i don't know i don't criminal history has nothing to do with hardship criminal history only has something to do with moral character and the i j a decision doesn't say a single word about criminal history you're not saying that that's the sentence that makes their i'm saying it's a it's an error of a mission that if you're if an alien is before the immigration judge and the question is the aliens moral character and he has no criminal convictions at all usually an immigration hearing that's as far as you need to go on moral character if there is no criminal conviction here there were there were problems with the tax returns but still that is a factor to be weighed against the  actors in the tax return and maybe if the i j a had weighed them together maybe he would have found that the problems with the tax returns outweigh the criminal history and even can i ask this is before the a was the fact that your clients had lacked a criminal history that i assume that was put before the absolutely right ok so then the i j a goes through some weighing process and says i find that the adverse factors outweigh the positive right and the b i a then says we agree perfectly weighed the foregoing adverse factors against the respondents evidence a good moral character came out the right way in our view so i don't you're right that maybe it would have been better for both the i j a and that to explicitly mention that one of the things in favor of good moral character was the lack of any criminal history but the fact that they didn't mention that doesn't strike me as a legal air well i think you're giving them way too much leeway and letting them get away without performing the proper analysis you're assuming you're assuming that they considered the criminal history out because you you or your counterpart and before the i j a put that before you just said that but there's not a single word about it right but that's ok i want a single word about your you're just you're assuming that they did what they were supposed to do even though they don't say a single even that even though it's a glaring obviously obvious thing that should always be considered and they don't say a single i'm assuming that when an adjudicator is asked to weigh a good versus bad and the good and the bad are put before that person and they say i've weighed the good versus the bad i think the bad outweighs the good that yes i think that they generally you can assume that they've considered everything all adjudicators this particular immigration judge in this particular case you can make that assumption i mean we're going to carry that over to no no i'm just saying your assumption is what that even though that fact and it's highly relevant as you're stressing today and i believe you that fact is put before the adjudicator and when it comes time to do the way that your kids are just completely forgot about it and that's so that's why we know or should assume that they didn't do their job right you're assuming that he forgot about instead of making a mistake and you're assuming that the i forgot about it instead of making mistake the only way to be  perform the analysis in a way that we know they perform the analysis ok so do we have a do we have case law that says that imposes this explicit listing you know or are mentioning type requirement that you're asking us to impose because that's all that to me i think the tax stuff is enough and i understand why the maybe i wouldn't have given that much weight but i think a reasonable adjudicator could say even if you don't have any criminal convictions this conduct is bad enough for me to say that you have you lack good moral character but now you're exercising your discretion in in saying that the tax problems outweigh everything else that's the guy js i'm not i'm i just told you i don't know if i had been sitting in the i j a shoes if i would have come to that conclusion there are a lot of positive equities i assume in your clients favor that i don't know about but when i get a record that says no criminal history but years of tax cheating and the adjudicator whose discretion i have to defer to says i think that outweighs the lack of or all the positive equities i'm not in a position to say that's wrong now you're saying because they didn't specifically mention the one positive equity that you think is the most important that we should assume that they didn't adequately take it in account we should send it back for the do it all over again i'm just asking do we have a case that actually says if the i j a that i fail to mention the specific positive equity that we assume that they didn't take into account they have to do it over again the touris are all positive relative found relevant factors in favor of the alien should be considered we don't know that that was done we don't know because neither the i j a decision nor the b i a decision say that it was done and i the whole point of that decision is to ensure that they actually perform the analysis even if even if this court doesn't have jurisdiction to to make the discretionary decision on this itself it has to ensure that the discretionary decision made by the agency is actually done and actually considers all the relevant factors ok all right we'll give you a little bit time for about oh thank you ron let's hear from the government morning your honour's attorney seventy two f lee on behalf of united states attorney general it is clear that on there i mean a two forty two a to b i that this court lacks jurisdiction over discretionary determination of good moral character on the one a one f of the immigration nationality and you're opponents not contesting that fact he's just saying that there should be a legal requirement to cater in this instance at least make some explicit mention of highly relevant positive equity and that wasn't don here and so we should declare as a legal matter there was aronsen about what's wrong with this well your honor what i hear from petitioner not only petitioners brief but also in petitioners argument are a lot of words like weighing and factors and discretion and leave a way and all that adds up to is a discretionary determination of what this court has said and even on the tourists torres this is not a tour which predates i rewrote as your honor had stated initially with regard to discretionary stripping of of j of what torah says awaiting of the positive and negative factors and what is abundantly clear in this particular case and i've seen many as agency decisions and what is abundantly clear from this particular these particular decision is that the agency was clear on the record weighing the negative factors and positive factors there is no required so i actually have a concern that seems to not be your opposing counsel is concerned about this opinion by the b a i because it says that there were additional factors raised by respondents on appeal and those included the lack of criminal history and then the b i a says those are not material to the issue of the respondents moral character so if that sentence is referring to the lack of criminal history then i think that is wrong isn't it to say that the lack of criminal history raised on appeal is not material to the issue of respondents moral character well i think with respect to what what petitioner raise on appeal was with regard to we didn't have a didn't mention the lack of criminal history and so then on appeal one of the things they said is we have a lack of criminal history and so i am worried about whether this sentence is referring to that and making a mistake saying it's not relevant i don't i don't particularly read it that way i read it in the sense of saying that in looking at the determination made by the immigration judge that we've now adopted and affirm that the i v agency i think as your as your honor said specifically made clear in the lopez versus ashcroft there is no specific  requirement that this particular agency in the keep everything right but the agency has to understand what is relevant and what isn't and so if the agency made a mistake about what could be relevant what's legally relevant then that sounds like a legal error so can you explain what you think that sentence means could you the sentence is the additional factors raised by the respondents on appeal relate to the issue of hardship or whether relief is warranted in the exercise of discretion and are not material to the issue of the were specifically relating to the hardship determination i e autism i e the where what would happen to the particular children if they left it not in particular framing the issue for purposes of lack of criminal conviction i just don't see that i don't i don't see that in that particular sentence and that's not how i read that particular sentence at all because it says the additional factors raised by respondents under appeal relate to the issue of hardship in b or whether relief is wanted in the exercise of discretion and are not material to the issue of respondents moral character it's just it's an odd sentence that it's not and i concur it's not the greatest sentence in the world but i think i think for purposes of hardship and i think if  one takes the opportunity and time it's in the record to read pretty brief of respondents brief obviously on appeal before the agency respond and highlights a great deal of the hardship determination and hardship determination what i think what the  respondent or petitioner now conflates is that they're saying well they didn't talk about hardship look at all the hardship that my children sylvia and my son are going to face in the event that we leave our son who suffers from autism it's setter and that in the of itself should have been considered well i think that's not they're going to have making today i mean i think that was considered right i think you'd make a different argument today which is that they didn't consider the lack of criminal history and again as a harking back to what specifically in the record it clear from the record that the lack of criminal history was addressed to the immigration judge and i will also address buyer address to rest to the immigration just but there's no requirement under any case law tourist included that sets forth that the lack of criminal conviction in that of itself renders as you having good moral character in fact what the legislature did here was a wonderful thing right is they set forth these per se factors and then they submitted and they say ok there's also a catch all because this is relatively amorphous we need to understand what good moral character is and sometimes they come up and the i r s maybe didn't do its job in this particular case and isn't prosecute these individuals but these all as your honor has has indicated impact good moral character we have eight plus years of faults of occasion of tax returns nothing in the particular statute that section that is being referred to the catch all provision on the one zero one half of the immigration nationality yet sets forth any requirement that there be a conviction or there be a lack of conviction that's what's and that's what's great in this particular case is they have been better off if they hadn't filed tax return i think they would have been better off had they filed tax returns on asli and not have cheated the government out of money for as your honor has indicated for eight plus years i mean i think their number one they're required to fire to file tax returns on the law that is correct so they would be violating the law by not filing tax returns so that may have very well played into a good moral character analysis as well a and b to suggest that they would be better off by breaking the law a little bit instead of breaking the law a lot and i'm not suggesting that that that there's a legal requirement here for a conviction would somehow render them in a better better light or better scenario i would disagree because they're going to file tax returns could also be because again on the two forty two a to b i this is why we're here like we're we're peeking right now behind the apron are behind the curtain behind the curtain and we're trying to peek in what the legislature said is because of this because of this discretion and we're in trusting the attorney general of the united states of america with this discretion that it's really not appropriate for this court to sort of pete behind the curtain because this is what we're doing we're having a trial within a trial so to speak we're now rehashing the positive and negative factors that were considered by the agency when the agency when the legislature's already said judicial branch you're not to get involved in the weeds here and what i hear an argument as well was in pretty briefing to this court is a lot of responsible have put a lot of weight on the fact that they lack any criminal history but i'm convinced that that's actually not an appropriate factor to even put into the way of good versus bad right that would be a legal error that we would have jurisdiction to correct know it's an interesting question your honor because what you're suggesting is that a legal error for failure to consider a particular decision by the agency and that would somehow refusal to consider saying this argument is being made and we're not putting this into the mix of good and bad i would say that that would be a better argument that we have here today i think that's what he's your opponent is arguing and let me just hear your response what he's saying is that i look at the decision and i'm just looking at four of the decisions right so the i g has gone through a page and a half of all the negative things that arise from the tax cheat and that's certainly a negative equity then the court then the judge says the court has considered other factors in its assessment of the good moral character issue and it goes on to start talking about the positive things right but then ultimately concludes on balance i think the negative  the positive and what's not mentioned in the recent taishan of the positive is any mention that they lack a criminal and a criminal history i think your opponents argument is that we have no assurance here that the i j a understood that that needed to be taken indicated that they have in fact relied the information that was put forth but i'm just saying to if you disagree with this your opponent says that in most cases the lack of criminal history is by far and away it's almost dispo of in favor of good moral character right so if that's the most important the positive equities and proceeds to list a series of things that it's thrown into the mix to weigh and it doesn't mention that one are we to assume that the i j a in fact understood that no that's actually does count favor good more i think yes you are by this case a court case law required to assume that they did take that he that the immigration judge he took that into account number one a number two i think i disagree that saying that the lack of a criminal conviction is the most important factor as a situation where somebody could be a bad father or a bad parent or a bad individual and have no convictions and all of a sudden we come to the determination that individual has good moral character almost making a leap of lack of conviction equals good moral character and that's not what the legislature says here and that's not what the court in these this particular courts case law says and i think what's what i think what's important here is under the i need two forty two a to b i this is a discretionary determination that is beyond the jurisdiction of this particular court and i think the court should dismiss the petition for review and i think your honor some for your time oh i'm sorry i had to introduce a possible fly in the ointment here but both of you are and we are understanding the term criminal history in a very narrow sense which is there's no criminal convictions but there was criminal history here in a broader sense there is criminal conduct cheating on tax returns i see and the i j a did recognize and find that there was cheating on tax returns so the fact that the i j a found that there was criminal conduct and spent a lot of time talking about criminal conduct and that the b i a spent a lot of time talking about criminal conduct wouldn't your argument be that of course the i j a in the b i knew and understood and considered that were no there were no criminal convictions because the criminality was front and center particular was criminal conduct what i fear though is when we talk about criminal convictions i do not want as a representative of the attorney general here to suggest that we have to we are now inserting into this good moral character language the requirement lack of a conviction or existence of a conviction that was my only concern but i do agree wholeheartedly with your honor's assessment of that particular argument and i've gone over my time and i think you of the early thank you thank you council for your argument let's give you two minutes for you have something more to say thank your stretch and trust the attorney general with the discretion to weigh the relevant factors it does not equate to a complete lack of restriction in selecting what the relevant factors are that part is subject to judicial review by this  court i think we're doing an awful lot of speculating on what the i j a considered what he didn't consider i'm just going by what is the rightness decision what are the b i a right in their decision that's what we have to go by and why don't we why don't we send the case back and have them actually do the evaluation and if he comes back the same way well that's his discretionary decision to make but he there is nothing in either one of those decisions to indicate that he properly considered the factor that neither of these respondents has ever been convicted of anything and it seems that you're basically asking us to check the agitates homework  give him a bad mark or her a bad mark because he or she didn't use those words but can't to the point i made to your colleague at the other table can't we very clearly and confidently infer that the i j knew very well and consider the fact that there were no criminal convictions and we can infer that from the fact that the i j a in the v a were talking at length about criminal conduct i don't think so because like like like was mentioned earlier there is a list that he makes of positive factors a short list of positive factors the fact that he mentioned those but didn't mention the most important factor in favor of the respondents i can only infer from that and that's important factor is the petitioners committed a crime but weren't convicted of it and that somehow is going to tilt the balance tilt the equities from a negative result to a positive result they weren't charged with it the immigration judge has no expertise in tax matters never net need expertise in tax matters to know that you can't claim dependents that don't exist but you don't need expertise in tax matters to know that you can't claim married status when you're not married but they should but in the evaluating their their moral character it should be considered should be evaluated whether these are master criminals or whether we are dealing with someone who has no education at all a husband who has a third grade education the husband is a dishwasher the  works at mcdonalds they went to tax preparers to ask they don't get i don't think we can patronize a dishwasher and suggest that a dishwasher wouldn't know whether he or she had children and whether it's appropriate or not to li children on a tax return that you don't have i think that all of us whether we're judges or nuclear scientists or dishwashers know that while for example they claimed that they were married on their tax returns before they were actually married while they were living together before they were actually married and they were asked why did you do that and they said well the we went to the tax preparer and he told us that since we're live in the gather more or less as man and wife that we should do it that way and he was asked well did you know that you weren't really married well yeah but they relied on someone who supposedly knew the tax code to to do their taxes this what about the fake kids now that's a problem it's definitely a problem but i do but but conflating that into analysis into an analysis of the their entire criminal history which is basically zero  i don't think i don't think that you can do that and i don't think that you should extend that kind of of you should just assume that the immigration judge and