my clients and i are asking in this case for the appellate tribunals to do two things that are essential to the just and proper functioning of both the judicial and legislative branches of our government first we're asking the court to ensure that the federal courts give due deference to the legislative branch when in acts legislation and not to impose its own policy concerns however legitimate whether they be inherited or current on the plain meaning of what congress has enacted that will mean here that the district court decision has to be reversed because the court he district court in as recognize so basically the authority in that statute is limited only under certain circumstances where there has been delayed by the executive branch the authority exists where there has winded way and it's only limited in certain circumstances which cannot happen here second that would require that we reach a conclusion different than other circuits of reach correct well i don't think it requires well i think yes an answer your question with regard to the second of our arguments with regard to this the promulgated of the regulation it would require that this court take a stance that is directly contrary to the clean talking about or is that on the regulation i don't i'm not sure that was on the regulation but in my to the best of my memory that it did not to deal with the interplay between fourteen forty seven b and fourteen twenty nine my recollection was that this this is a case of really first impression with regard to that or at least the reasoning you know as why any was not made clear sufficient to preclude the reasoning that i here but you know and to get back to this this point about what i think is essential to be done to preserve the functions of traditional legislative branches i think this court must not hesitate to correct the executive branch when that ranch exceeds its authority and propounds a regulation which cannot be reconciled with the statutory enactments which it purports to interpret and that may not happen often but it did happen glaringly in this case in the case the interpretation of a removal proceedings pursuant to a warrant of arrest and i understand that correctly that's correct ok right so that what we see happening here is  the lower court would essentially allow the department of homeland security to usurp or the rightful functioning of the federal district court in cases where there has not been a warrant of arrest congress did not provide in case for any authority to be stripped whether or not it be construed as just attorney general's authority or the federal court's authority legally what's wrong with the the regulation that equates  warrant of arrest and notice well i think it just it goes against all standard dictionary def initials and also against statutory and regulatory definitions of what a warrant of arrest means for the department of homeland security to come what's a warrant for arrest issued under my guess is chapter twelve under the immigration law is does the rest of chapter twelve give us insight into that excuse me why it i guess all i would say is that i don't see anything in the whole chapter which would allow the warn of arrests to be construed as a notice to appear and notice to appear is just a generic term that applies to persons who are removable but not certain settings it could be ambiguous other words that reasonable people could look at that and not be clear as to what congress had in mind by that term your honor i don't agree that it could be ambiguous in the sense that it could be sufficiently ambiguous to include the term notice to appear well i think that's a separate issue the question here is is is it ambiguous well what i'm looking at of course is chevron other words do we get it we get to a chevron situation here where the agency that is charged with enforcing the law has expertise in the area is authorized to construe it to me i think one would be hard pressed to say that specific document that the government has to issue in order to show the arresting party that there is cause for arrest and arrest was it the department of homeland described it in terms of notice to the person to be arrested doesn't the statute in eight u s c twelve twenty six say it's not a definition but it says on a warrant issued by the attorney general an alien may be arrested and detained pending a decision on whether the alien is to be removed from the united states that's more and empowering document for the arrest to take place exactly i did mean to imply it was a notice and document all i don't believe it is a notice indictment i believe it's it's a document that in titles the holder to a restaurant shows cause why that person should be or us not necessarily the alien and himself or herself and then elsewhere on the statute at twelve twenty nine a one it speaks of written notice saying that in removal proceedings written notice notice to appear i shall be given in person to the alien that's a different instrument exactly that's that some our point exactly i believe that if any fair reading of the  the legislation and these and the regulations is going to come to that conclusion and i i don't think you even get to chevron i certainly don't believe that you can get chevron because there's not sufficient ambiguity here as i've already briefed what about this question of you know whether or not there would have to be well i mean that this policy question about race to the courthouse which some courts have been concerned about i'm not saying that that is a ill live is illegitimate consideration i'm simply saying that it is a concern that first expressed in the one nine hundred fifty five case which may not be and may not have been the primary consideration of congress when it th acted section fourteen twenty nine now and in fact it may be a legitimate consideration but it has to yield to the plain meaning of the statute so regardless of what one does with that regulation if the statute itself says we're only going to limit the authority of the attorney general or even the court if one reads it that right which i don't think it can be read that broadly under certain circumstances that means that congress already resolved that policy in that form and it's perfectly reasonable they would have done so because maybe they were concerned if the executive branch is delayed that i think that decision should be taken out of its hands if we agree with you on the issues that you've just discussed with respect to three eighteen point one the regulation and that this  doesn't really come within fourteen twenty nine because it was not a there wasn't a warrant of arrest in this situation it's only a notice to appear and only the regulation brings it into fourteen twenty nine and if the regulation is impermissible and it's not within fourteen twenty not sure if we're here you know and that should be reached the second issue i have course we're not within fourteen twenty nine why would we decide under fourteen twenty nine i have course would like to see the court reach but with issues i don't think it's necessary to holding that would give it would reverse the lower court decision and give my clients a fair shot at that naturals that naturalization from the district court but good morning good morning timothy belsen on behalf of the federal defendants and applebee's your honor the parties agree on the sole dispositive fact on appeal the yes are currently in removal proceedings based on evidence that they obtain their lawful permanent resident status have their father's marriage fraud in light of that fact and in light of section fourteen twenty nine and this court's decisions and and have said he and the district court correctly held that it lacked the ability to issue the remedy appellants request but that's only if were within fourteen twenty nine by virtue of the regulation of three eighteen point one because this there was no warrant of arrest your right while we would disagree with that there was only there was a notice of appeal to appear that by virtue of the  but the statute speaks of in various places of both a warrant of arrest and a notice to appear serving different functions being different things and eat there is even the riemann other regulations that treat them differently and almost define them differently but you're out why isn't that enough well you're out to the extent that there are there is the possibility that the department of homeland security could choose to use two different forms to accomplish different things that does not preclude the department of homeland security from consolidating those for economical or official sea reasons if those of congress has said no under fourteen twenty nine but it's  portable when there's a warrant of arrest issued under the provisions of this chapter respectfully your honor i would suggest that only applies to the extent that congress said this is what a warrant of arrest is congress has said if there is a warrant of arrest then we're in fourteen twenty nine and this chapter and then twelve twenty six a which is apprehension and detention of aliens under as as arrest detention release and that's as i know warrant issued by the attorney general an alien may be arrested and it seems pretty clear that that's the w issued under chapter twelve where respectfully your honor the tour of homeland security has authority to detain pre removal proceedings so it during the pendency of a move proceedings it does not often or often it chooses not to detain individuals it's done in this case but that doesn't mean that by issuing a notice to appear which by regulation covers both that it couldn't do so in a given case here there are any support for that other than the regulation issue the department i mean everything i've seen in the statute and even as judge said the other regulations indicates there are two different i and also make the language superfluous it says if there is pending against the applicant to remove all prissy thing you could just stop there because every suggest that if the department of homeland security had chosen to go a different route and had chosen to say we are going to issue two different forms addressing this issue then yes that would work but here the department of homeland security has operated to or has chosen to promulgated regulations saying we're doing this in our two different forms isn't there a notice to appear in do you just form sixty two and a warrant of arrest in the h s form are two hundred there are two different forms aren't they here your honor the regulation we believe addresses that issue so i notice to appear here would be a warrant of arrest so your assertion of ambiguity is the at the department could take a phrase that has understood look at what the defense definition of arrest was for purposes of the sentencing guidelines judge bennett's dissent goes into great detail about how arrest does not have here we're looking at the immigration laws i don't think we ninth circuit directly addressing the question you're honest with the what was the rationale of the reasoning given the sentence or the seven circuit noted that although a word could have a meaning elsewhere that there's nothing that precludes the department homeland security from defining the terms for purposes of immigrate look at the different terms that we have mentioned in the statute i don't believe it is specifically broken down by statute or by regulation all of the look at the different regulatory terms that are inconsistent with three eighteen point one what we don't necessarily agree that they're inconsistent but to the extent that you've identified them i don't believe that it walked through all of those different regulations or statues your honor we would  in this court in determining whether or not jurisdiction under fourteen forty seven b was exclusive or concurrence noted that fourteen twenty one c and fourteen forty seven b required the court quote to undertake the same analysis that it must make with regard to that that equates to two statutes fourteen forty seven b and fourteen twenty one seed the type of inquiry the court and gauges there the court looked at it noted that they were both hearings they were both de novo and that it was essentially the same inquiry the only difference was when it came to the federal district court did it come after denial under fourteen twenty one c or did it come after after a delay under fourteen forty seven b in the situation below haro where it would be reviewing a denial that was made within one hundred twenty days and that an aisle was one account of the attorney general commencing removal proceedings and what have affirmed that different but that the inquiry and what the district court is doing whether under fourteen forty seven b because of a delay and no decision or what it is doing under fourteen twenty one c where there has been a final administrative decision is exactly the same in obviously have to follow the language of the statute for we have left open as question have stepped in and was looking at whether there was exclusive jurisdiction the district court in health at there was that out the the agency couldn't make  determine the matter in other words the application or remain and it with instructions so i don't see anything that would prevent that us record from exercising its jurisdiction in the language of this so do we have to read in languages that what you're suggesting here i'm suggesting that four hundred twenty nine is brought into play so if there was no where is that well you're right in the end fourteen for a seventy eight where where does it cross reference fourteen twenty nine it doesn't cross reference fourteen fourteen twenty ninth us it deprives the district court of its jurisdiction when there wasn't an actual final order of remove all your honor that it does not speak fourteen forty fourteen twenty nine the government acknowledges does not speak to the district court's jurisdiction as recognized in belo haro which dealt with the corollary in fourteen twenty one c not in fourteen forty seven b but nonetheless in belo harlow the court recognized that it did not preclude the district court's jurisdiction what bella harder recognize that was that when fourteen twenty nine is implicated because there are removal proceedings pending against the individual that precludes the relief of granting the application during the pending of the proceedings and so it just applied the plain language of the statute i can't see why the fact that applied the language of a different statute has any bearing on fourteen forty seven he  are i'm clearly not explaining it eloquently fourteen twenty one c when there has been a denial allows the district court upon a application by the individual seeking naturalization to do review of the out of the denial but the court can make its own findings of fact and make its own conclusions of law or law and basically re evaluate the and then four hundred the nationalization application fourteen forty seven b which applies when there has statutes and specifically if you look at footnote sixteen in the hopes up in decision as well as the pages surrounding the footnote it talks extensively about how these are exactly the same analysis the district court is considering under fourteen twenty one c and fourteen forty seven b the exact same thing whether an application should be granted and it's not deferring in any way whether there's been a denial or not to the administrative agency now we recognize that there is no directly controlling precedent because  indeed in the fourteen twenty one c contacts but nonetheless excuse me nonetheless given the fact that these are the same analysis as this court has previously held and then just a matter of how it gets to the district court in the first instance that that we believe leads to the natural conclusion that this court should reach in this case which is that just like in belo harald where it held that because of fourteen twenty nine and because of what congress was doing there the district court did not have greater jurisdiction than the instructions so i'm taking it that you don't want us to do that so i'm saying how do i read that how would i read that language to reach the result you're looking for well your honor so my time is running out i'd like to address that question if i can with regard to this the second part of the language which talks about remained that is clearly precluded by fourteen twenty nine so we wouldn't change the language of fourteen forty seven b we would reckon knowledge that congress in another statute said that for instance the agency may not consider the application may not rule on the application while remove proceedings are pending and we think it would be incorrect to simply omit any reference or consideration of fourteen twenty nine we think that the court's tax taken in by the hearo which wasn't a fourteen twenty one  thank you the first thing i need to do is correct myself because i was lying as i look at it is a case that this panel would need to express we disagree with if it ruled in in favor of  the attorney general is this whole race to the court argument which i've already addressed which i addressed at pages twenty two to twenty four in my brief there's a lot of language and i was lining which just simply begs the question it does not deal so much with the plain language of the statute as it does with this perceived policy which i think congress already resolved with the language that shows in section fourteen twenty nine as far as zero seven zero seven goes we simply believe that that's not controlling on these facts and would not be dispositive council suggested that the merest already to detain that the homeland security department has would be sufficient to conflate these two terms we believe that the language of course precludes that and of course there are good reasons here why warrant of arrest was not issued because my clients had no criminal record they had no hint of cope ability and even if one credits the government on the events that supposedly happened back when the end of the country they were eleven years and fourteen years old at that point so obviously there's not going to be a warrant of arrest here and that's precisely why this kind of a case needs to be read so that  does have not only jurisdiction but authority who believe that there is a distinction between those two concepts with authority to determine their case when the executive branch as has delayed it and not only did the executive branch delay decision on their case here i mean they knew in two thousand and eleven that there was apparently some sort of a problem the stepmother had made a statement of a sham marriage but didn't act until the until a long time  passed after my clients of the blight for citizenship then they and one hundred twentieth day after examinations when they put them in to remove proceedings which suggest games play on the part of the government i believe  and with regard to this question about reaming and which comes up in section fourteen twenty nine we would i agree that if that provision is stated so broadly as to include the district court which we don't believe it should be that then remain and would be precluded as well based on their our own but it is possible for a court to determine the case and not remain and that's what that there is the possibility that applications for citizenship could be brought after the conclusion of removal proceedings i didn't cite the case in the in my briefs but i think it's a coat over seven case so there's that possibility too that