you know if they could have that conversation somewhere else so we can hear counsel i'm sorry please please proceed i'm sorry on your honor of hellenism it in a total hour when she was twelve years old she was raped at knifepoint by a stranger in her own bedroom and her sense of safety and security in the world was taken from her and really every day since then it's been an effort for her to get that sense of safety and security back her her husband and children who are accompanying and or following to join her are also eligible for u visa status well the problem you have is and i appreciate your story you've told us and i appreciate the circumstances but the problem you have is trying to tell me whether accompanying or following to join is ambiguous or not and it's it's in the statute as it is now i can't find that it is anything but ambiguous it's well it's our position that it's actually very clear well that's your position  don't find any place does to make that to make that determination i'm being a devil's advocate here but i'm trying to give you give me the opportunity i looked is accompanying or following to join define place in the statute you know is it used it's used in numerous subsections but it's never defined would you agree with me it's never been defined that's all right because the surrounding language designate when qualifying relationship of accompanying and following to join family member must exist in this statute yes your honor going to congress welcome home where part of what part of the statute says that in the the immediately preceding subsection where it talks about eligibility for derivative family members where it is a sibling under the age of eighteen congress says they they have to be under the age of eighteen on the date of finally so where they congress wanted to tommy eligibility to the date of finding the application congress says so expressly directly in the statu there's that's your argument well well that is part of the argument yes because i don't buy that at all i guess i'm trying to figure out what is the best argument you have if that's the best one and i'm going to listen well that is no i don't believe it ok but that's one argument the other argument is if when we step back and look at a company the following joint in the case law accompanying the following to join as always been accompanying is present moving forward fol to joint future there's never been a past duration no requirement and so it's in the case law there's been situations where maybe the reason the reason i'm asking you these questions is that if i can find that the statute is clear and unambiguous then at that point i am bound by chevron to give some deference to the agency  how to fill the gap that there is in this statute so unless you can convince me that it is clear and unambiguous then at that point i have to give deference to what the agency suggests then at that point if the agency does something that's totally arbitrary or capricious in their interpretation there of then i can say well your interpretation is out the low door but the st step is is the statute clear non ambiguous and that's why i said was it defined does the surrounding language say and i don't believe that it does does the statutes ledge take a purpose dictate an answer it doesn't so i'm look there's a gap at that point then then you've got a tougher question because then you've got to say they were arbitrary and capricious in the ministre deep regulations that they drafted to fill a gap that's why i'm asking the questions i understand and well and we would say they were arbitra is a humanitarian purpose to give to provide some kind of safety and security to the u visa beneficiaries let me let me ask you this question because i understood your argument to be that by the time this statute was an acted in what roughly two thousand dollars corrector that the phrase accompanying or falling to join had in fact even though it's not defined in the statute itself it had in fact acquired a kind of it's a term of it had acquired a set of meaning that always meant you know at the time you're going to get the actual benefit the or get the visa or whatever not at the time you applied and that  that sort of settled meaning is what we assume congress would have legislated you know that backdrop is what we would have assumed congress legislated against and so therefore in the provision you were referencing involving unmarried siblings under eighteen that's why congress needed to specify a different that's absolutely correct you are ok and but i seem to remember the government saying well that the premise of that argument is wrong because in fact there was no settled meaning it did this over here and me that over there and so it was just all in the us so what is your response to what they did say that but actually when you look at each provision every time it was used it always has always meant at the time the principle is approved accompanying the find their spouse or their children were allowed to accompany and following a joint was it's always been used that way the district court judge compared it to the assigned one regulation is silent situation and that's exactly right that's exactly how it's done in that context if someone is granted asylum the in their spouse and their children are eligible for a company to fall into joint status and that's what we're saying that's i'm sorry and that's what the what the we were saying it's always been used that way and that's what congress intended for it to use that way in this and in that context let's just say that you someone applied for asylum in two thousand and fourteen ok and they weren't married then they're though they weren't married even though they were married on the day to finally that's exactly right yes and in fact we do that regularly we add when we're away we haven't we're representing an asylum applicant and they get married whether application is pending there is a mechanism to notify the agency and that individuals then added in granted at the same time if we need to go and so it's our position clearly plain language strong armed but with the agency regulation they there's no mention of marriage fraud in fact there's no mention of any authority to to make this regulation oh much just a minute  mention of the authority to do it what we're really looking at is is this arbitrary or capricious so at that point we are saying is it arbitrary to use this to make sure marriage fraud doesn't happen and frankly that's a very low standard very low bar and so just to say because there's no authority you know i don't know what authority they're using there is no question marriage fraud is the problem there's no question they'd not like to have marriage fraud they would like to have people be allowed this kind of thing because of a fraudulent marriage so making the regulation the way they do to eliminate it is not arbitrary it's not capricious it's not without foundation whatsoever and that's my standard or review even if i don't agree with it that's my worry with your argument well i think the response is they didn't even say it was marriage fraud when they published this regulation there was no reference to marriage fraud there was none it's only been presented or your the thing you're arguing is because it wasn't in the room it wasn't in the publication when they enacted it it wasn't it isn't valid i can't i can't find any law for that every one of these has to have a rational basis there's no reason why or why not and that's all i'm trying to get you to tell me it seems to me totally it can't be arbitrary or capricious so where do i go well if there i would point out and they saw it in the case of rue s d s when i talked about the religious workers even in that case the court sided in the agency came forward to show that we have evidence of fraud in the religious worker program and therefore the timing of when they can apply that's a rate that's a permissible construction of the statute well that's exactly what happened here you challenge encourage or allow marriage fraud but an individual gets married while they have a you visa application pending there's no real incentive there to commit marriage fraud they don't know what the you visa petition is ever going to be approved and so it's not like they're marrying a united states citizen i mean that's what we had the marriage fraud amendments back in one thousand nine hundred and sixty it's not like you're marrying a citizen who immediately then you have an opportunity to apply for for permanent residence status and that was where the the real concern there's been no a surprise no evidence at all that there's fraud involved in the you visa program but ok i understand your argument let's go back to this is siloam and refugee status asylum and refugee differs significantly from you visa a you visa person nonimmigrant you visa status is limited the you visa recipients are already present in the united states they become victims of this crime they need not demonstrate why they left their home or their country or why they can safely return non immigrant visas vatos visa statutes generally last for a period of four years and must be maintained for three years before the visa can apply to adjust this there's no that's not anything to do with asylum and refugees that's a totally different situation it's a totally different application process that has  application it's about the says the asylum and the refugees are granted to non citizens fleeing the united states to escape harm or persecution in their home country that's a totally different situation than what we humanitarian programs and once the principle has met the requirements and has been granted that status then in both situations congress is decided that the family members are allowed to live with them here in that same status and so in that sense we're looking at the derivative family members the programs are enacted in the same way you're over your time sorry will give you a couple minutes for about all that but when we hear from the government now three years to adjust their status to a lawful permanent resident by just i mean obtain a green card by filing an i forty five dollars so that's that's one path forward if they were married at the time the initial petition was filed there's an your opponent's argument that as of two thousand when the statute we're dealing with was in acted that the key phrase here had in fact developed it had a well settled meaning that congress presumably not to incorporate and therefore that's why we see the deviation from the normal rule in that provision that deals specifically with unmarried siblings under eighteen so what's what's your response to what i'm really interested in do you have specific examples preach you one thousand where that situations are quite different they're different policy concerns they develop in a different context and generally involve someone in another country trying to look at trying to come to this country the u v s and the t v so which were the two that come  that their position is that in every single immigration statute where that phrase is used not just in the asylums context every other context were accompanying a following to join is use it has always been understood to mean at the time it's kind of on the on the back again right not not at the time you file your application and if that's true it seems to me that we would under normal principles of statutory interpretation we would say that congress would have been understood to the congress would have understood that that phrase has that meaning so when they use those exact same words it's a funny phrase it's not like right it's very much a term of art when they use that phrase here they must have meant to incorporate that meaning that had already been settled  and it seems like quite good evidence of that is the fact that when congress wanted to deviate from the time of filing the application i'm sorry time of getting the benefit when they wanted to take it at the time of filing the application they very explicitly and then in the provision that were interpreting they don't use that phrase so it seems to me that's pretty clear textual evidence that congress had in mind a default rule in the background they deviated from it when they it and congress subsequently uses the same language that doesn't follow that they are incorporating this regulatory language because they are letting the agencies write regulations to reflect the is at issue here at the agency has in the face of silence has drafted come up with a walk the reason i'm sorry to interrupt but when you say in the face of silence i guess i just immediately sort of resist that because if you accept my premise and that's why i want you to contest it if you don't agree with it if you accept my premise there's no silence or company no following to join has a meaning it means at the not at the time you filed the application so if  that's true when congress used that phrase in this statute we would assume that that's the meaning they meant to incorporate right so there's no science congress has spoken they've said we want the time the time that we're going to measure to be the back in time the time when you get the immigration benefit so there's not silence for the agency to step in and fill congress has spoken to the issue and that's why i say to me it's so telling that when congress wanted to deviate from that background rule they did so very explicitly in in it's not even like in some distant statute it's in the exact place that we're supposed to be looking out to to figure out what congress is not so there's no dispute that if congress spoke speaks to an issue that's the end of the matter and that congress  that congress has spoken to this issue then that's the answer but for the reasons judge smith articulate it i don't think that's correct because that there is nothing but what other i'm sorry go ahead on are but i'm not trying to i  think you have to answer judge watford's question what he's saying is congress had in its mind a term of art with accompanying or following to join that's his argument now i tried to get into that argument he wouldn't quite get there this morning but the honest truth is his argument in his brief is that this accompanying or following to join is a term of art it has a clear meaning and when congress put that in the statute they had that term of art in their mind with that language and that's what my colleague is asking you the question about and that's why i'm asking i would love to have you answer it it seems to me that in support of that argument he goes to the foreign affairs manuals nonimmigrant visa classification provision and suggests that that's in support of his argument but i would like to have you answers question and rather than me enter it for you i'd like to have you answer it because i had my colleagues answer questions for you but i don't want that to happen here i want you to have to have sure that question because concerns but there's also a difference for asylum it's the relationship must exist at the time that it's approved whereas for refugee it but that the timing issue is at the time of that mission into the united states so that the whole point is that  he has only one rule just an example where it has two different meanings in two different context and regulations that were promulgated i believe on the same day so and that's prior to two thousand when congress enact it that's the statute so but but the reason the refugee i'm not as familiar with the refugee part as is for the asylum but the refugee person their home country they've applied well ahead of time correct right so in essence when they arrive and are admitted that is the back in time that's not the front end time of applying so that seems to me that example does not help you situation how it's interpret in the context of asylum shouldn't control i mean what would we seem to be falling back to is that's that's this instance that it defines that is at the time that the application is filed that's what it how it should be applied for any category that congress creates unless congress comes up with and specifically gives a different rule moving forward and i don't think that's a fair reading of how immigration law has developed in that there are different interpret if there was an explicit answer provided by the statute but here we have it is a statute we have a regulation a regulation struck the employment there is there is another avenue of hurt of of of application for whatever relief they're sick with the exception of she and you he says no ok he doesn't help you because it's an act at the exact same time you so you have nothing other than asylum and refugee and if i don't end up finding those persuasive which i don't think i do for the reasons i told you you have nothing else to rebut the argument that that phrase has had in fact by two thousand and acquired is settled meaning that it's contrary to the position or now are you well meaning it's a little bit hard to refute the idea that treated differently i know but i'm saying that if you're right there is a very free in the refugee context to help me with this isn't there like you file an application and then sometime much later you get in it so what is what am i missing to me that's it's not measuring the time when you filed it's the time of admission so it's just like this isn't well no because here there are people applying here in the united states so they're there there is no admit in a sense there is no ignition and if you let me just put in these terms like i did with asylum with your so refugee you ply for refugee status in your home country in the year two thousand and fifty and you're not married ok you get admitted in two thousand and eighteen and in the interim in twenty seven you did get married so when you are admitted as a refugee do you get to bring the spouse even though you weren't married at the time you originally filed back in two thousand and fifteen for that relief i think you do right  yes that's what i'm saying so that's when you lose on that it's doesn't it doesn't support his argument as to how the phrase has been used in this context that's what i'm missing and so you cite you say this is all i've got and then i say it seems to me it helps him not you and so what what is what am i missing i'm missing something well i mean i don't think you're missing something i think that we simply disagree as to whether or not the statue is silent on a certain point you believe it has a clear meaning as  that developed in the aftermath of world war two and and had other policy concerns that because it has a meaning the asylum context moving forward that that that is what if congress wants to give it a different meaning it has to explicitly say they say so so is your position there that that we have to give deference to the agencies determination whether the statute is out ambiguous or ambiguous but know that the court looks to the statu spouse children unmarried siblings under eighteen years of age on the date on which on the date on which such alien applied for status under such a clause and the parents of such alien as i read that on the date on which such alien applied for status modifies only unmarried siblings does not merit does not modify spouse children parents and if that i mean doesn't it give another i'd be interested in what your responses i mean does that affect the plain meaning of the statute i see my time is expired may bri only to the extent that they are under eighteen and on married and because of this this kind of it's a kind of a narrow exception it should be read narrowly it shouldn't be seen as something that trumps the overall framework which is copy that if congress spoke to one particular exception and felt strongly about that particular exception and that it would write one not lead to the agency that one narrow contact that that one narrow scenario the kind of the inference is that there is that that it should not be applied in other contexts in other scenarios i see that my time has expired i would just in to sum up thank you very much let's give you two minutes for about all thank you are you know what i'm not going to take two minutes i thought i feel like that the issues and the the questions the course correctly articulated it and and i'm so i missed on the term of art but that clearly is our argument also this issue about this provision of twelve fifty five am and later being able to apply for permanent resident status that is a much more difficult requirement there's a an extreme hardship that has to be demonstrated is years later the spouse could easily be deported there is no safety and security while they're waiting so you know what that reminds me and i  forgot to ask government counsel so there there's not going to be an issue of mutinous in the real near future is there under current processing times it's going to be at least another three years for before we get there that's all