statutory interpretation clearly in the purview of this court but which the b i a completely failed to do in the underlying case matter of con on which the decision here was based for that reason we believe is appropriate to consider in the first instance which it never did and let me explain why congress deliberately chose the words attorney general in the two twelve d three waiver for non immigrants seeking admission this court has already addressed the words attorney general and nice harvey holder which we cited in page twenty five of the opening brief the government did not address at all in their brief in the shar the court there specifically found in a very analogous situation that when congress said attorney general that's what it means there's no chevron there's no any kind of deference that applies whether when they're laying which is clear and unambiguous any contrary agency to interpretation right either through regulation or through decision interpret in the regulation has to be invalid another similarity with the nice attorney general the two twelve d three language was amended by congress in two thousand and five restructured it and they left the words attorney general there in two thousand and six just clarify what you're asking because at the outset you said we should remain to the and were you saying we should remain and to the b i to reinterpret the statute i don't think the answer is yes and the reason is i don't think that the v a here ever interpreted the statute i think to be a focused almost exclusively on its own regulations which are not relevant ok we have a situation here we have the seventh circuit in the eleventh circuit have gone one way and we have the third circuit having gone a different way so you're suggesting to us that we don't need to answer the question and then we would simply remain and because the b i didn't actually take everything into account so the short answer is yes but if i could explain why i think here i will note that when the third circuit decision came down it was before the matter of con be a decision so the only two circuits the two have an address this since the b i came out with its decision is the seventh in the  by easterbrook and the eleventh of course this court can apply normal statutory interpretation rules to figure out the meaning of congress it's particularly complicated here i think because it's not really clear what the agency should do after that right like how the agency is going to implement the words attorney general the most logical thing would be immigration judge wright but in theory nothing would prevent the attorney general from procedure as long as it's in the purview of the attorney general obviously that's not something this court would decide so really the question although it's been framed as whether the i j has the authority the question is whether the authority remains with the attorney general in light in the more specific statute i think that's right for the very specific question before this court the only existing infrastructure or decision making process is the immigration judge and the regulations specifically give the attorney general's decision making authority in immigration cases to the immigration judge right and so we've seen immigration judges very well quick to make these decisions so by all means that's the most logical end result and the only possible end result given this current regulatory structure but i don't really think this court needs to ultimately decide that in order to find that the agency was wrong in not giving meaning to the words attorney general in the statute right and so let me also understand then we have this very specific statute that gives the u s c i s the authority to make the u visa waivers correct the the d fourteen is it is given to homeland security right but you're suggesting that there can be a parallel path that's right so why you know in the first reaction i have about not necessarily final reaction but the first reaction is well you now have a very specific statute which normally would trump a general or attorney general statute why would canon of construction clean your argument because they're parallel they don't contradict each other right i think that the specific over trumps the general applies if they actually contradict each other they don't because the d fourteen is specifically in the purview of the homeland security secretary the d three is in the purview of the attorney general that's not a contradiction that's two separate waivers to victims of crime to they're in the civil so when they created the u v as a nonimmigrant they would been well aware there was already existing waiver right and they created a separate one they're not coextensive the briefs indicate how they differ slightly congress clearly meant for you  as a nonimmigrant to have the existing waiver for through the attorney general and the special d fourteen waiver only for you was not exactly the same to guarantee they had access to that and that would be from homeland security i might add when the two thousand was created homeland security didn't exist yet rights homeland security came to existence in two thousand and two and subsequently congress amended the d fourteen waiver that originally said attorney general because that's all there was and change that  homeland security in two thousand and six they never went back and changed the d thirteen excuse me the d three d three state attorney general and there's been no dispute to this day when the government  fourteen there's no dispute that you visa applicants get access to both the right times did your client to reopen three your honor is there any problem is you have to show that there was ineffective assistance of counsel yeah if you go down he does but the board said the board said the reason there was no ineffective assistance is simply because the board doesn't accept the attorney general's jurisdiction over the u v s a waiver which was the whole basis of the ineffective assistance so the ineffective assistance question collapses with does the does the attorney general have jurisdiction over you isa waivers question right which is we think the fundamental error show that if we win on th point like in the seven eleven circuit that the judge does have jurisdiction over that then i think the ineffective assistance this is clear the v i i didn't give any other reason for rejecting ineffective assistance other than there was no waiver to apply  this nothing else i will reserve the remainder of my time you ma states of someones in the united states president already and they go through the visa process at that point so what matter khan is saying is that because they're in the united states already that d three does not apply because con and they cite the regulations implementing d three that's two twelve point four and that is to thirty five point two i believe and those regulations implement this this d three authority and they state that's only four and they're all  they didn't have the benefit a matter of common either and so they didn't look at the regulations implementing d three which was two twelve point four and five point two those are ignored in that decision and i would also state that they do agree  ambiguous why are these two different waivers and their attempts to reconcile i don't think make a lot of sense one they states start out with the premise and l b j that would be redundant why would congress enacts the fourteen waiver if the de three waiver covered everything extrajudicial killings and just patient persecution the d three waivers more limited however that waiver is a certain security grounds you can't waive so it doesn't make a lot of sense to have these two parallel waivers when one is actually more limited so when that plays out forward to remove proceedings you could have someone before an immigration judge requesting a waiver in the seventh or eleventh circuit and then they need to have security waiver grounded security grounds way than i did as no permission to waive then have to there's two seven circuit decisions so you're talking the first the first one ok but on the second one and by as they kind of go after it again and there they're nightingale asked for he says why shouldn't we now that we have matter of cause we have these and that it did not address certain regulatory aspects why shouldn't we send it back to the  i think there's a very good reason why the board doesn't address that regulation that sanchez is concerned with because it really is irrelevant it's kind of comes out of nowhere in sanchez they turn back to speculation one thousand r c a so far one thousand point simply not relevant here so we're not challenging whether or not a theory is delegated to immigration judges it is but only in those certain port of entry determinations which don't occur in the u visa context so that's why we don't see why the seventh circuit found that relevant and also when you look at that regulation one thousand points and the a and b it doesn't make sense because subsection b states that immigration judges should only be delegated authority necessary to the disposition of the cases in front of them and you visa is not necessary to disposition of a case in from an immigration judge immigration judges don't otherwise have any authority over duties or merits or the ultimate justice status the most they can do is grant a continuance while you see ask consider the visa even without visas granted like for this petition or they don't have the authority to terminate proceedings she's got our ongoing until d h s agrees with and their discretion to reopen and close proceedings so it doesn't dispose of an immigration judges case whatsoever so that's why the regulation started the government's term we don't know why the seventh circuit finds that relevant and i think if he remained in matter of con they explain that again but that's what just comes out of nowhere we don't we don't see why a seventh circuit found that relevant and matter of congress still control because if it walks through why that the three authority does not apply this is the year that the visa was created was in the two thousand correct and you're saying that if you permit authority of the i j a to address that it can't do anything other than suspend one limited proceeding to immigration judges also doesn't make sense because traditionally it's only been used at ports of entry and now petitioners want this nontraditional use of the d three true great this odd procedure where there is just one little part of the visa proceeding and from an immigration judge but none of the rest i can think of any other visa versa thing like that but just because there isn't something else doesn't mean it's not permissible here i don't understand quite understand that is a statutory i would say it's it's not it's impermissible in the way de three has been implemented over the past few decades where is been limited these port of entry exclusion proceedings so you even look at the regulations which they have not been updated unfortunately but to twelve point four implementing d three is still references the old exclusion statutes the saying that that's the only time an immigration judge is going to be looking at this is in the old exclusion proceedings when someone was not yet in the united states and this goes back to even status names changing and the terminology is changing but the terminology with respect to d three did not change the regulations did not update the regulation did not update the there was a reference to the secretary at one point and they were moved that out of the three but yes so i think when you that's this whole historical version of the three i think also explains why congress found it necessary to  waiver because de three doesn't have wouldn't apply in the visa context because they're within the united states and so a matter of common when they're looking at the traditional use of d three their study a matter of way or someone who also is in the united states and deportation proceedings was trying to invoke a de through waiver and they stated no you cannot do that because you're not a port of entry you're not what this t v wavers traditionally used for and they said that was not permissible and that's how  states a body by the law and goes to consular processing if you siesta nies there waiver they don't even have a second form so the person in united states illegally gets more process and the person outside the united states abiding by the law or there's instances of waive more grounds and so you end up with a bounce back between the attorney general can waive this much and you say yes which means this process is should be in tail and you see asking the first place and you and immigration judges routinely miss grounds  presented with in these seven circuit eleventh circuit is they just look at what's charged in the n c a a usually which is one crime one conviction maybe or just one instance of unlawful presence and they waive that and what happens is you say yes have to go through the whole thing again yeah yes that's its purpose so it's if you're going to be within the united states i've yet to see someone who's been a victim of a crime outside the states and a blast for you and us is not aware that this is why it's a different type of visa and how would it be unfair then in the person being outside oh i'm not saying that i'm saying there's been a case where someone's been applying a port of entry for a waiver for you but they haven't people applied from abroad because you could have them on a previous tourist visit united states they're a victim of crime right they go back unfair and absurd to have a second form of jurisdiction and that's the course of the questions thank you uncharacteristically i will defend the i j's ability in an adversarial proceeding to apply the law correctly they are trained attorneys and this is their specialty so it actually makes very logical sense that an immigration judge with the ice prosecutor in the room able to suss out all the legal issues where someone is applying for a waiver so i respectfully disagree with my colleague on the reasonableness of that that procedure but i also like to point out a couple o r clarifications too tall d three waiver is not limited to people entering the united states as i mentioned in the record in this case shows you visa applicants inside the united states apply for d three waivers when they are in the civil and because congress created this hybrid you visa nonimmigrant normally nonimmigrant waivers before the u v so basically anyone applying for not having a waiver was coming from outside the united states excuse me i'm not ever going to be said that my need a waiver so that historically the de three was only for people i come into the physical border or port of entry but the u v s congress allowed people inside to stay inside even though they might have been undocumented never made a legal and admission before and now they can just change their status to you he said inside but it's still a non issue for is this a peculiar situation where everyone are historically and now we have a new way new type of visa that you can get because you've only been here and you've been a witness victim it said of the crime why wouldn't that very specific thing govern as opposed to the general which is always been at the border that the reason i believe is is congress specifically made the u v and nonimmigrant visa so it had all the other characteristics of a nonimmigrant visa which includes the would get a nonimmigrant waiver d three that's for non immigrants immigrants applying for green cards have a different set of waivers historical you could apply either outside or inside to this day there's no dispute about that to twelve  this case is not about that it's about nonimmigrant the only nonimmigrant waiver in the statute was d three all non immigrants who needed a waiver would apply for the d three and almost all of them would have been outside here too for  that of course he would rather have a remain and then have an adverse decision anyway xli point it out but that every man would be fruitless because the regulation  would be determined by the board really isn't applicable here and they really get a matter of con back so i think the error that the board made in conn with respect to this case in the ninth circuit is not taking the jar into makes very clear attorney general means attorney general there's actually a line from con where they board said however even if the attorney general has this waiver authority regarding your visas that was argued by controls it's the attorney general that means the immigration judge i think that's the error especially in light of the shy don't believe mr khan was in the ninth circuit so it would have been relevant in that case but i think in under ninth circuit law that's already been decided do you think it's possible that of course they could come back and they can take a look at it and they say well we are looking now we looked at the statute itself but we also now looking at the statute we just reinforce that con is the appropriate route to go because you have this very specific carve out for you visas would that not be one of these and then we would presumably give some deference to that kind of a decision you're on and you would only give deference step two of chevron if you found that the normal statutory rules were were were and becomes i'm not i don't think they're ambiguous i think they're an ambiguous as a new charge because it says attorney general right so the ambiguity would be how to apply the how the asian she should apply that the idea that it's not in the purview of the immigration judges because it's a collateral issue which my colleague mentioned that's not really accurate when congress says you visa applicants in the united states get access to the d three waiver and someone is being subject to deportation with no legal route to that d three waiver the statutes being violated to understand your point then you're saying that post matter of  the third circuit didn't have the benefit of but post matter of con that there are changes plus a mystery so in your view we should simply let the bee i have another crack at it and tell us what the answers i think so right i think so i think you can handle it if you go we will do our best you might you may or may not see us back here i don't know what the board's going to do i don't know what the board is going to do  but i think that they did not have the benefit of well they didn't have the benefit of the seven eleven subsequent citizens but they also didn't care about matter me sharr because it wasn't a once or good case this one is so i think that it could very well be a different outcome in that circumstance and i think the i j s are the obvious logical choice for the board to make because because the person is going to order removed by an i j without access to that d three waiver that the attorney general has to provide right if they change the u v s the rules to say the attorney general has a rule in the affirmative application they might that would be that would also solve the problem they've they haven't done that so they need to do something thank you thank you thank you both for the argument electrical workers pension plan