immigration appeals actually reviewed this matter and if that is so then this court has every right to review that matter and we do not reach we do not need to review the issues of exhaustion or  five decision i believe it's the very last sentence they clearly state we have already considered those facts and arguments in rendering are ok they were twenty first two thousand and three decision and i believe they're referring to the facts and arguments that  have raised on our motion to reopen they are pointing to them and saying these were raised before i view of review them before since they were not raised on appeal the board may have done that by themselves by reviewing the record otherwise  excuse the exhaustion and insist on versus ashcroft the same thing has happened this court has not had the case similar to that circuit the second circuit has done that versus harris which is three thirty and thirty ninety seven through one of the one that's the second circuit case two thousand and three and judge ruled that you have a point yourself in a similar case that you had ample opportunity similar section have specifically prohibited any department of justice employee thank including our units officers and the immigration judge from making any adverse determination based on the cues there is testimony in this case if you look at the judge's testimony there is hardly any mention of what the respondent has said the judge will use or counter ways everything that the respondent has said against the testimony of the accused in the court consideration and it leads to an unjust result especially in a case like this when the board has had an opportunity to respond to it and they do not it is not egregious for this court to consider the  case since i have only a few minutes left i go to the cruelty issues on this case if i'm any judge makes much of the fact that the age difference was i'm sorry the judge states that the respondent makes much of the fact that the age difference was twenty two years instead of twelve years is that enough itself cruelty no it need not be in similar cases for instance in hernandez the courts refers to dr mary an i'm sorry an accused and abuser who resorted to name calling ultimatums about respondents help to the family about the she was she had infidelity in the relationship and she lied about her age in a situation where that age difference is not merely incremental or mathematical it could possibly affect the fact that the respondent wanted to have a child with this woman that she accused the actions and the utterances of the abuser it rises to the level of extreme cruelty i do not believe that the court needs to review this to a sponsor issue because i believe that in this case exhaustion has been merely fundamental or incremental and this goes to the issue of whether asylum can be granted based on the machinery case now or withholding of removal can be granted based on that i don't believe anything that comes out of this cour good morning please the court my name is cindy ferrier and i'll be representing the attorney general in this matter first off it's important to know the context of this particular case congress passed the violence against women act in order to protect persons who had a genuine history or fear of violence or abuse and where the abusive spouse further threatened them by controlling their immigration status record here doesn't show that however the court doesn't even get to that particular question because in this case the court's jurisdiction is limited by the fact that the attorney that the immigration judge excuse me denied cancellation o extreme hardship cases he further found that there was no extreme cruelty but the hardship determination by the bore by the immigration judge is dispositive of the issue and the court evaluation of the case there is the court may certainly exercise jurisdiction if there has been due process or legal question raised by petitioner that is colorable here petitioner hasn't manes such a claim puts forth that in fact the due process claim was exhausted however it wasn't exhausted in the appeal to the board and there is an entitled to them based arguments there and his petition for review we cannot say that the board fully considered the petitioners claims as it had no occasion to address the relevant arguments with respect to the issue it reviewed nor can we say that there is any record let alone an adequate record of how the administrative agency handled the claim in light of the arguments presented to me we decide that they are due process issue the immigration judge did not reference or did not rely on i should say the ex wife's testimony in coming to the conclusion with regard to extreme hardship and as that particular finding again is dispositive in the court not again get into the evaluation of the battered spouse claim because again the immigration judge tonight in an exercise of discretion in the court's ju therefore limited in that aspect and i should note that the immigration and other due process violation that they cited was that the immigration judge applied the improper standard and didn't evaluate all the proper factors in coming to his hardship determination but in fact again petitioners haven't shown any prejudice by this violation if they were to have occurred because they haven't shown that there were any of these other  additional factors which would have in fact related to petitioner at all in fact the immigration judge considered a nanny many factors in making his claim or in making his determination that there was no extreme hardship that had been demonstrated by petitioner in addition it should be noted that the petitioner hasn't mentioned here but the asylum and withholding of removal claims here the court is also without jurisdiction to review the determination that the immigration judge made the asylum application was untimely filed and petitioner doesn't appear to be seriously challenging that so the only claim with regard to persecution that's before the court is the withholding  here doesn't compel the conclusion which is the standard that the court must apply doesn't compel the conclusion that petitioner show a clear probability that he would actually be persecuted if he were to return to germany the actual mistreatment suffered by the missionaries was was to a much greater degree then petitioners own mistreatment there they actually had received a death threat and then soon after the death threat they had their tires slashed their home was robbed and ransacked and the court determined that that was in direct relation to the death threat husband had been being twice the wife had had to run to escape mobs their sons had been beaten severely and and again that was for asylum which is a more lenient standard then for withholding which is what needs to show here so although petitioner may have certainly experienced discrimination and perhaps harassment it was not the sort to rise to the information he or she is employed to independently corroborate that from an unrelated person and not to do so would result in a five thousand dollar penalty in this case the trial attorney actually sought out on many occasions that i believe that the immigration judge by allowing the abuser to be in the court had his judgment changed to the degree that nothing in that hearing was fundamentally fair you cannot compare that you cannot have an unbiased opinion when you have listened to the abuser and relied on that and also violated the law yourself in reaching that decision thank you very much