board of immigration appeals would otherwise have granted asylum is barred from all forms of refugee protection as a terrorist because he performed mandatory military service in the national forces of his country's government in this case he did this under your ass and also  three definition and indeed that your one definition had only been applied to state act a certain extent the argument is one about plain language no longer true all right well it's no longer true but at the same time we're always an old people and we don't agree about much else and we've all and practice if you're going to do that then how do you deal with that when the state department does say ok here's a here's an arm of the state it is a terrorist organisation you well  i think as several things one you know for example if a legislature were to pass a statute for the regulation of child care providers for example and it defined a child care provider as any person or group of persons whether or not incorporated the provide care to children a or three definition of particular difficult to to apply to to to state groups is that the two or three definition is the looser of a hierarchy of three types of definitions in the act  and they are defined in the hierarchy of strictness of terminology and also a hierarchy of strictness of process so that you're one definition which is the one that was applied to the i r c g just recently is the strictest on both according to both parameters so it is has a pretty precise definition it requires that ringback the group pose a threat to u s interests and u s persons and there is relative transparency in the designation process so choir's requires publication and if a person is inclined to give to such a group or wants know how the united states considers it the person who look at up and i think that in this connection although i certainly acknowledge the breadth of the wording of that you're free definition conduct that would otherwise be included within the scope of two hundred and twelve dollars a three b what's the timing of those so many of the real idea right because because we're talking about a statute that gets put in place and it's a minute by the patriot africa to me and it was then amended by that we'll likely act in two thousand and five in two thousand and four and see the congress incorporated into the act the  provisions of the intelligence reform and terrorism prevention act of two thousand and four which is the provision that makes inadmissible anybody who under color of law before our nation to here here's my question to you if you can see that congress is still amending and changing and polishing this thing after more specific provisions you're relying on doesn't that indicate the congress knows it's dealing with a broadly we're seeing here and it's not attempting of foreign government officials we're going to be the one of my questions is you may do you spend a lot of pages in your brief talking about this revision history the judge jordan was talking about you were you point out rightfully that reference the government was dropped out but didn't  was covering the acts of foreign governments and i would say in this connection that i think that there is a difference between i mean there is definitely a difference between describing the state as of as of foreign sponsor of terrorist activity and to say that a state has a or its agencies are terrorist organizations in a direct saps and i i completely agree with the government the congress may has made references and has lost penalize in states that are described as sponsors of terrorism one remove and in fact using terminology like state sponsors of terrorism is in a way a way of avoiding describing the state as a whole as a terrorist organization there's no question that how do you do there's no text to support that right there's no text that you can point to in the statute that makes the distinction you're making there is  i think that you know i'm looking at these provisions as they sit within a coherent scheme where congress was clearly intending for there to be a fairly well i say i'm not going to go home why not a fairly well regulated and coherent process question you're talking about this scheme as a whole at the same time they were giving the adding these years broad statements about what would be covered  also make provision that congress make provision for exemptions and then expand those provisions for exemptions even as they increase the apparently increase the reach  persian material support from the provision of material support from the furthering of any specific perhaps but stick with me on my question they did that what i said right they gave increased exemption sale allowed for group exemptions not just individual exemptions the expanded who could provide those exemptions right it would just be they would be secretary of state or department homeland security and all they had to consult with each other but there were there was as congress was doing  this that is giving this real broad authority to designate territories ations it was also broadening exemption capacity was and it was harming it in certain ways and also it straightened it in certain you know a smaller problem needed but they decided what they decided in at the same time as part of that scheme they put the safety valves employees there's about support what the government is saying is that this is meant to be flawed because  aside from the acts of state actors and there are numerous reasons why the united states wants to and needs to let people into the country might fall under some of the be the undisputed scope of the tariffs of the  don't it doesn't follow from that the congress at any point wasn't visioning that this would be applied to state actors and in fact if one does read the statute that way it's a little hard to read that consistently with the board's own precedence in s k for example which took the position that non state group can be deemed to be tear through terrorist groups only about virtue of the fact that it takes up arms against the stablished government but if that establish government is also treated as a terrorist organization under the  armed rebellion against it thank you board's an s k it doesn't have the authority to recognize the legitimacy of a foreign government that's not what's happening here the immigration judge is not making a finding that a militia controlled by a foreign state recognize that in the macalister case work pointed out that these these bars not only sweep up what we think of as terrorist activities but what we might not and congress might not even think of this terrorist activities with and that's where the exemption is begin in it i mean if if you think congress didn't organise to be the congress couldn't amend this for it to be because if it's given the application to the government now says it should have you have ordinary citizens who do nothing more than pay their taxes in a foreign country who because some immigration judge some where in the united states of america decides that some organization affiliated with that country is a tier three you t l now everybody in the country everybody in the country is affiliated with a terrorist organization because the statutory scheme means because that organization identified by the immigration judge is a terrorist organization per that i j sitting by him or herself is a subgroup of the larger state organization the entire state is a terrorist organization and anybody who supports the state is by definition barred as a material supporter of a terrorist organization so bob jones someplace in another country just paying his ordinary every day taxes becomes inadmissible in the united states as a party to materials of material support of a terrorist organization now what is wrong with the logic of that argument from his use that that is the result that's the logical and to which the government argument here drives us that that requires a lot of lot of suppositions and jumps in following that trail the st of the which is this court's decision in which requires authorization so we're simply that there's authorization all up and down it's not just you know a rogue unit of the military well so assuming that none of those groups are all under the cure three exemption this this exemption specifically that assume all of the assuming all assume all of that it's  the soonest it one i g a you know since i don't know in york pennsylvania or in the yukon someplace one person says that organization i think that's a terrorist i think that's a you know then everybody in that country is now admissible that's what they're telling us on the other side and you follow their logic it seems pretty compelling is it isn't that in fact where you end that it's also roe not correct for another reason which is that immigration judge decision isn't binding on the nobody's ever nobody's ever done this before rick each year a refugee from any place else in the country says an accurate statement we're looking at we're looking at the st of its kind here well if if by this you're running a me and alien barred from eligibility for relief from things like a persecutor bar so it's not uncommon at all that people are precluded from admission or benefits immigration benefits because of conduct of the big agent with the government one in one case people also was eligible not just eligible for tier three exemption but every individual exemptions on those grounds for example the duress exemption he was considered for that here he didn't receive one but he hasn't challenge it in front of this court so it's  from the court but those into these folks are not just eligible for the group exemption they're eligible for individual exemptions as well so that there's much more to this than just there the immigration bar the considered for examples that's that's why congress rather narrowing its extremely broad language institute exemption provision illustrates that problem there as well i mean here we have an immigration judge who decides to hold that a particular army meets the tier three definition despite the fact that neither side was arguing that and then the board review consists of a single member  while not determinative perhaps of other cases argued on other facts with respect to the same group nonetheless has public forests in a way that the administrative decisions were not i would also say that there is a huge difference between and human rights violations over which they themselves bear personal responsibility which is not the case here i mean the stunning thing about my client situation is that he did nothing illegal that is to say be a legal thing he did was fleeing from of their military service not performing at what he did while forcibly conscripted was a violation either of syrian law nor would it be a violation of u s law while he was here that may be a problem for your friend  protect refugees under the u s under the one hundred and sixty seven dollars refugee protocol and it's never receded from those obligations by statute and maybe we could do this yes would you concede that the language as it exist looking at the provisions now you might say oh nice solution but looking at the provision you read it and it does not make any exception at all for state actors just covers anybody who support  terrorist right and terrorist activities very broadly defined it so i would certainly conceive that makes no explicit exception to her state actors so that the only way to get to your position is to say that shows it could have been made to be that broad got that right you report you requires to look at those d other two places and say ere ago you could have meant that right i would also say that  e sorry my train of thought i would also say that it this needs to be interpreted consistently with the refugee convention that's well and this court has held has interpreted t a national security bar which is the one that that's the trick bars incorporate by reference in a way consistent with the conventions understanding that it should be premised on actual serious criminal misconduct of which there is none here also time while the agency decided what it wanted to do in that regard and then he was ultimately denied the difficulty as you know is that the judicial review that's a lot for those types of decisions is exceedingly narrow into a situation where the denial include is premised on  discretion of the executive branch and so was purposeful for you know reason correct ok so it's affectively so the exemption that mr stone is advancing is don't worry about it and and and there's judicial review available to say these kinds of things you're saying that's a loser because the direction the directs exemption is effectively on reviewable i mean except in the very narrow situations that the state what for which the exemption process is ideally make findings as to whether or not the person would be eligible for the relief he seeks but for the an application applicable our terrorism related in this ability bound at that point it goes to the agency d in this case as a matter of fact in discretion you misunderstood the scope of your own authority you've misunderstood the power that you've got to give this exemption that's there's no way to get that review as a legal matter  argument we also wanted to again thank you for coming and if you are meaningful we'd like to thank you at sidebar in a more personal way