the honorable the judges of the united states court of appeals for the four circuit oh yea oh yea oh yea all persons having any manner or form of business before the honorable the united states court of appeals for the four circuit are admonish to draw not and give their attention for the court is now  god save the united states and this honorable court ford one that is whether there is unmistakably clear congressional intent to limit custody orders for the purpose of special immigrant juvenile status to those that are deemed permanent under state law i say this is a straightforward question because it's a straightforward analysis of statutory interpretation and this court's consistent we want to find congressional intent we look to the text the structure and the history of the statute in that order to figure out what congressional intent is here so first the text of the statute the relevant text is found at eight u s c one one zero one eight twenty seven j little lie that is the provision that creates special immigrant you have a status and you'll see other  subsections but i don't believe there's a dispute between the parties that mr perez satisfies the remaining eligibility requirements for s i j or special moment juvenile status the only question here is the language that says the plain text says any immigrant who is in the united states whom a juvenile court has placed under the custody of an individual is eligible that's the key language is placed under the custody of an individual t things jump out about that language on the plaintext one there's no temporal requirement there it doesn't say what kind of custody order it doesn't say temporary it doesn't say permanent and secondly it's it's using language that derives awards physical custody of mr perez to his brother and it indicates that this situation the court and in the record here is the complaint that was filed for custody and it goes through a lot of the fact that mr prez's faced through his life the abuse from his parents and the abandonment from  viable and we be separating families with your interpretation of this provision your honor i think congress is perfectly fine separating a pick kids from parents that abuse them and abandon them because that's also there in the statute that's a requirement and congress expressly provided protection to these types of petitioners and said no agency no federal government agency can require an s i j applicant to reach out to a parent who is abusing the ban of them sound u s c thirteen fifty seven  for foreign nationals abroad your honor due process is what congress says it is and that's what makes this case very different but that assumes there was an underlying order that was adequate under the act that's for purposes of the   of the administrative appeals office we can only this court can only affirm the rationale that the agency actually gave is not is reasonable is rational in the record made created an emergency when the  refugee resettlement for a bit he was then transferred to his brother in north carolina he was also in removal proceedings with the exact vos immigration review and amidst all of that yes a year and a half objectless seems like a long time but when you're dealing with a fifteen year old kid who has to deal with all of this situation being passed around from agency to agency he did seek a custody order in a timely fashion but what about the emergency there was a filing for a tiara which order what was the emergency based on what's in the record your honor i don't know the fact is the state court judge made that determination and the agency here isn't contesting that they they they don't see to its credit doesn't doesn't see itself as an appellate body of the state court and if you look at their policy guidance that's in the record you'll see they instruct their duty caters to trust the state juvenile court judge to make months or a one that's right under the actual complaint was filed six months and i believe the motion for custody was filed six months it takes time to get these things through in north carolina as as well south carolina as well as virginia and this is a district court or mecklenburg not that's right and it was intended if you look at the face of it is intended to last until the child reached the age of majority it says this is intended to be enforced until the next hearing well the next year was after he turned eighteen that is what the agency's policy guidance requires in page one eighty seven of the record you'll see their policy guidance and it says a permanent order is the general rule but our exception to that rule is that as long as the juvenile court intends it to last until the age of majority that's sufficient and that's kind of a secondary argument here because that what the government's going to primary position is that this is not a permanent custody or the documents speaks for itself is or is the word permanent in the statute anywhere no your honor in the regulations anywhere no your honor doesn't show up in something else that's not a regulation of  order envision certain indicia of formality of one thing the terms of the custody who has custody who has visitation is a requirement reunification with one it's not just a custody order it has to be a custody order with a final that reunification with one or both of the emigrants parents is not viable and it's not written in the disjunctive it's written in the concha reunification has got to be not viable we don't know about because how can this be a qualifying if your bird and how can this be a qualifying order that you need to produce in order to claim this special stash status when one of the findings that is required under the statute with respect to re they just say that don't they rather than saying that must be a permanent order saying this temporary order an emergency tiara without notice doesn't qualify that they don't issue a holding that it looks like it paid for their order that's what they're saying in that this is partly emergency order was not a qualifying order not that going forward that has to be permanent your honor i'm not disagree with your characterization i'll i can we can read the same language i think they're saying that a temporary ex parte order is not sufficient because it's not permanent and that simply there's no thanks i think for george we normally think of and what's really in visions north carolina law envisions as your usual custody order it doesn't seem to me that this is the this bears that your marks over usual custody order and it falls short of the order far short and my view with respect to reunification of the parents because no notice was ever given them before this order was issued and again i'll cite to eight u s c thirteen fifty seven h congress said no one can require an s i j applicant to reach out to a parent or someone is abused or abandon them period that's congress telling us that ok and again due process concerned this is also is not a terminations of parental rights as a temporary custody order that's all this is and i think that your point judge wilkinson about this isn't the typical custody order i would expect to see visitation weekends that sort of thing is a very good point and it's different in every single state and that's the other important part of the plain language here is it's using a term that is derived from a area of law that in the strict purview of the states the term custody is the plain meaning of that term as it's what we normally think of as a custody order and that's not that's not honor i would i would point you to the o j case from this court two years ago that says when congress uses the term the to russian domestic relations law if an agency wants to limit it to something to something we have to show on mistakenly clear congressional intent to limit it ok and the plain language statute has no temporal requirement the structure of the statute we see congress a few provisions away saying for these types for kids in  custody state court customers mean nothing we're going to give them no credence and i see my time's running out conclude and so your honor i think this is a question of statutory interpretation and the text the structure and the history of statute shown on mistakenly clear congressional intent to expand protections for children like mr perez and for that reason we asked this court reversed thank you  ordered that he submitted did not meet the requirements it was deficient this court points out and agrees with the district court it sounds like from judge wilkinson's questions the juvenile court actually did not have the jurisdiction under north carolina's statutory scheme the court order itself does cite to the jurisdictional provision of two oath for in north carolina  and it granted emergency temporary custody and control of the modern trial to his brother i mean there is a custody order of the district court of mecklenburg county you know twenty ninth two which it has fifty eight dash to zero four and that jurisdictional authority gives it authority under emergency jurisdiction in a limited circumstance to do several things one is to make a emergency determination for very limited time but it must also set a subsequent hearing and also order that notice be provided to the parties who are going to be impacted here mr president that the juvenile court did those things  reduced from two thousand bomb until december of two thousand and thirteen bamma the other thing stopping to provide safety shelter and food for and went on and on and finding for a limited time in an ex parte proceeding only until july twenty second when it could make a custody or turn contrary determination it could not so clear that finality is required a court of competent jurisdiction is required the text or an open letter six with the juvenile court of north carolina so that when we go to the statue legally called the district court for mecklenburg county your honor when we go to the statute we are required to obtain several items right first we have to get a court to to place a juvenile in the custody of a person or an agency qualifying order that they're pointing to is the order of the juvenile court on whatever date it was correct it's not qualifying under the statute but that is the only order that they point to that's what they all right yes your honor that order of the juvenile on june twenty ninth yes your honor and your making two points with respect to that or number one it was an ex parte temporary order temporary order invision temporary order didn't envision that it was awarded custody to anyone or anything all it was doing was entering a protective order until the more formal hearing  would involve more of a plenary determination of custody rice and what the terms of the custody arrangement might be yes your honor and that's you know that's all i think that you're you're trying to say now did that ok so the one problem you have under the statute is that this ex party temporary order did not bear the indicia of a custody order but rather only envisioned a hearing at which custody would be later determined yes and the order states that where it says the hearing to determine custody of the minor child will be held on july twenty second two thousand  fifteen that was going to be that was going to be the custody order ok though the other problem was that under this statute there has to be some kind of founding with regard to the parents and that is that the unification of the child in the parents is not viable that's crap right now with respect to this ex parte a temporary order where the parents of a notified of anything no your honor they were not notified that there even a hearing nor were they given an opportunity to be heard as to these allegations that were made by mr praed so the you know the problem is we are separating children from parents without even giving the parents an opportunity to be heard that's correct your honor and in this situation we are taking away their parents rights to be heard there is no due process here and as to the allegations that they that mr press cannot be made to contact them under thirteen fifty seven age that's frankly in a political at this stage of the process thirteen fifty seven h only applies after the s i j statutory requirements are main ones and qualifying orders obtained can thirteen fifty seven h be applied it's before the agency process where mr press could not be made to contact there are two prongs to the star and order to have a qualifying order for else i j a staffed for a status you have to produce an order which is a temporary custody to plaintiff was as permanent as possible under north carolina law all we agree with that good we agree with that it's as permanent as i'm sorry not to honor and make you happy and let's focus under north carolina law north carolina law makes it very clear how permanent that order was it had no finale outside of those six as possible is not permanent correct but in the statute and pervert it is not in your regulations your honor it's in the policy manual that you if you if you get anything out of page three of the decision it makes clear that this order is not qualifying because there's no finality to the proceedings and it also references the t v p r a which does say that and in loco  issue here for us we look at the eleven zero one twenty seven james statute we look to what's required a custody placement of which and in the conjunctive a reunification not being viable with the parents and we no your honor it actually is very much worth the paper court app absolutely it's maintaining it's maintaining the status quo for the days that it was that it was there mr perez keep role in  thousand and fifteen he went to live with his brother february of two thousand and fifteen absent fourteen he came in general two thousand and fourteen went to live with this brother in north carolina february two thousand and fourteen it's not until june twenty ninth two thousand all this because he has the burden of producing the petitioner has a burden of producing a qualifying order under the statute and one of the one of the quote one of the criteria are the parents and that's hoping because he has a burden petitioner has the burden of producing a qualifying order one of the criteria for a qualifying order in addition to being a custody order is that it's got to be  there's got to be a finding that reunification with the parents is not viable has that finding ever been made at any point no your honor the parents have never been notified they've never had an opportunity heard and we don't know where the parents are and all of  fifteen defendants abandoned neglected and abused belief a since the age of eight by stopping to provide safety shelter and food for him that the judge says based upon the opportunity to go into a court in juvenile court ex parte without the opportunity for those who against he's alleging these allegations to be heard and allege everything that your honor just said there are horrific allegations to be sure what this juvenile court judge did is say based upon the information from the minor quote unquote he's maintained judge and she is maintaining the status quo for a limited amount of time but during that limited amount of time the parents must be given notice they're out of the country this judge  not challenging that mr president brother did have custody for the remainder of his childhood which was six days we are not challenging that order was valid that for those six days that he was seventeen years old his brother did have custody that his brother was ordered to provide notice to mr presence parents and that his brother and his parents had they received notice should have appeared for subsequent hearing had m district court in mecklenburg county and to see what's in their records the burden is on mr peres to tell us you should there's nothing in the record i just want to make sure what you meant by the record and you're saying this record in dispute that mr president satisfied all of the remaining eligibility requirements of the s i j the only issue before this court are that he has not met the two in the first element which is the parents the agency has not made or has not completed any review as to the other two components of eleven zero one twenty seven j it stopped at the first if you have this one more question  own side here thank you your honor the department has to provide consent to grant s i j status if you go back and read this court's decision from just this past spring that i also lost in this very court room you'll see the four circuit gave a good description of what is entailed in the consent requirement that's where the agency after looking the predicate order can go back and look and go was this done strictly to get immigration status and they can choose or choose not to exercise their consent so i do think the fishy timing you're identifying may be something the agency considers just under a different prom not whether the agency whether the customer must be final or not the second thing i want to point out  is the there is no other case law out there on this judge quite a bomb most recently the ninth a court in the northern california entered a preliminary injunction saying that u s c i s is overstepped its bounds and done an ultra vires policy admittedly it's a different policy and i don't interrupt your arms are what you would normally mean by a custody order but but what's important there yonder is that the the statute doesn't use the word order it simply says an immigrant who has been placed under the custody of an individual under the custody of an individual it doesn't say an order i would imagine there would be situations maybe in some state courts it's not written down i don't know and that's that's that's what congress has done here they've relied on a area of law that under the tenth amendment is strictly in the state courts and again i would point you to the excellent language in the decision that says federal courts should give some sort of credence and credibility to the states doing what they do best and that is that the government's position just ignores the state law but the government's position here uses state law as the entire framework the government's decision creates an eligibility requirement not found in the statute the regulation or even its policy manual and the government's position is looking at the order and looking at the state law section that was referenced and the order and the fact that the state law section is referenced and the order is the next party temporary kind of  as it is simply ignoring state law and no it's not it's drawing from state law and if i may respond to your two short points your honor i would urge this court to review the agency's own policy manual because it goes through all of your concerns your honor and comes out the other way and says look we don't care what the actual order is titled if it places someone of the custody of an individual that's good and i just want to read these two that the child will not reunify with at least one parent till the age of majority here that order says this is good until the next hearing and that's when we reach majority the same thing is there for the permanen know i'm on page one of the seven of the your honor that's right and it's the government doesn't even require a final order it requires something that is intended to last until the child ages out of that particular court's jurisdiction the other thing i would really point you to your honor's is it's a two thousand and eleven proposed rulemaking nama where never between final so maybe it's just good reasoning but you will see a vastly different explanation interpretation of the very statutes and what's being argued here and that is the same agency speaking out of a different side of its mouth and judge wilkinson i know my time is over but this is not a case about separation of children this is not people approaching the border and one parent being taken here and a child being taken here this is a kid a child running away in families because all of this has been done without the knowledge of the  parents and without as far as act and say and attempt much less a successful attempt to bring them as a parent you're talking about as a child as a parent i don't want my custody rights over child determined and come complete my yob my wife being completely absent that is separate is family separation and all right we've chewed the bone you have one last comment you want to make i don't think so you