material support bar does not apply to her that's clear first of all from the language of the bar itself the bar reaches aliens who commit an act in support of terrorism and to commit an act means to do something voluntary to do something deliberate to do something blameworthy to perpetrate i don't think you would find a single native speaker of the english language who would say that a victim of robbery someone who was robbed for that reason alone has committed an act in support of the robbers why didn't she get the waiver the only reason that the government gave is that she did not fully disclose the circumstances of us why it was unreasonable concluded that the bar does not contain a duress except certainly your honor for several reasons first of all the language of the statute as i said it requires elian to commit an act requires a particular man's right well it gets it gets into whether mr hernandez is support quote unquote for the far which the agency found in the government is not contest was not clue there is the link which commit an act and just as a victim of robbery does not commit an act in support of robbery when you were robbed by terrorists now you're talking about someone who then participates in the robbery she cheated not the motive for participating i mean we might as well stay with what actually happened here rather than their hypotheticals she committed an act of assistance the question is why  you're saying that he had mitigating reasons and the secretary didn't grantor discretionary relief now she she didn't commit an act your honor she was robbed by terrorists the terrorists came they threatened her what and then the terrorist burned down or store and then they held a gun to her head the only the only act that they that the government argues triggers the material support bar is that when the terrorists threatened her life came to her store and demanded goods from her store she exceeded and gave them the goods that is being robbed no different from any criminal pointing a gun at any one of us and saying you know give me your wallet and if we did it because we had a credible fear for our life nobody would say satisfies the criteria and the and the agency found here that she does satisfy those criteria if not for the material support bar and the only role an exception to this country need only reasonable grounds  that needs to due process minimums in which miss hernandez can establish that she is not a danger to the security of the united states and the the agency's interpretation makes that entire question relevant only to waiver look at in the waiver process which is in the nature of clemency like a pardon just as a the governor could look at actual innocence to decide whether to pardon a criminal but that doesn't mean that actual innocence ceases to be a defense  the primary trial and the only due process protections for that accused criminal are during the trial not during the clemency process so the due process protections that mr hernandez is undisputed entitled to have to be given to her in the primary education by the agency and not in the waiver process which everyone agrees is a is purely a matter of executive grace there are other provisions that explicitly recognize t dress exception this one doesn't grant you that commit an act sounds like you do a thing and not that you are simply the passive victim of something that happens but obviously a prior panel  court found found this to be ambiguous and sent it back and since we start out with the idea that it's ambiguous and i think you have to start out with the idea that it's him but you is the question is why is the why  should we not require to use chevron difference so the this standard that the unanimous supreme court articulated for that chevron step to an inquiry is set out in june allaying against holder and what it says is that if if the agency interprets the immigration laws in a way that does not relate to the aliens fitness to remain in the country then its interpretation is arbitrary and capricious and flunks even chevrons step two so the question is is the government's interpretation here related to mr hernandez is fit is to remain in the country and it is not because what the government has done here is is to exclude in arbitrary class of victims the government says essentially if the terrorist be chouse you may be eligible for asylum if the terrorists beach you and rob you you are suddenly ineligible for asylum because the terrorists derive some support from the robbery but the robbery is just another act of persecution against mr hernandez and for that reason that the government's interpretation of the statute is literally self contradictory and you see that contradiction on the face of the record in front of you didn't write that at the third circuit and maybe some of the circuits have concluded that there is no dress exception just on the plane wording on the face of the statute only one circuit looked at the quote plain wording although it never considered the words to commit an act the other circuits applied chevron if i understood the b i a s decision or the agency's decision she's supposed to have supplied fork we didn't merchandise modest quantities every three months right the agency found that said and so there is the claim of duress but it wasn't like they came in one time and just cleaned out her shelves over a period of two years every three months or so she would ac it was all involuntary they robbed her multiple times but they always robbed her and that is the only act that the government finds triggers the material support bar and if you look at page one hundred of the record the the immigration judge found that that including bike store and goods from her store but the extortion of goods from her store is the exact same fact that the government says makes her ineligible under the material support bar so as the government reads the statute it is literally a contradiction  time morning or hours excuse me jeffrey oh man can united states department of justice for the attorney general the board's decision here follows four circuit court decisions that have all agreed that the material support part has not include an implied e for membership in a communist or a capella tarion organization but specifically and explicitly includes an exception for voluntariness where involuntary innes and the board as have the other circuit courts have found we see cases all the time where someone says i was persecuted because i was chief of police of a village and that very same grounds of persecution turns out to be grounds for a bar under the persecutor bar for other  because you because you talking with two different instances very likely at its core your honor congress drafted the stat the material support bar the terrorism bars to be broad and they delegated to the secretary of the h s and the executive white waiver is real it was real in other words does he really comply with our treaty obligations it may sound good that you can get a waiver now and congress isn't it is required reporting of waiver applications and whether they're granted or not and i get the two thousand and fourteen report and just like most reports it's kind of impossible to understand but it looks like for here one or two under duress exemption waivers there's only four granted for asylum applicants and fourteen or three only and and i'm wrong about that i mean how do we know whether and how does congress know whether ok these are real these these waivers are real and people who deserve them are getting there they're very much honor i thought i had cases where people received exemptions this case is here instead of the i case and the i've asked case because i and i have as it turns out got exemptions so that the snapshot that we're looking at i think it was a two thousand and fourteen report which is not a public report by the way it's not a public report the reports to congress are public a group called judicial watch got hold of it put it on the internet but be that as it may we don't know  waivers are really kind of consistent with what we've done and there have been hearings over time going back to two thousand and five six and seven there's a very lengthy discussion in two thousand and seven congress what is that i think the eighth circuit and a case we cite are brief the irshad case says that the exemption process is not a sham it involves some some very we're talking about national security matters very sensitive matters a lot of factors go into consideration and the process takes time and the fact that not every single person who might qualify for one gets one does as is is indicative of nothing the numbers that the two thousand and four reports show on indicative of anything there are ten are represented there are significant numbers of waivers that are granted but i don't know whether categorize of the names significant i know that i've had cases my office my my unit is the only unit that considered she was interviewed and the and she didn't get it that doesn't mean that there's something wrong with the with the statute or congress needs to change the statute you know  the the dressed offense as i understand you have a survey to be arguing and there's no there's no act that was committed i mean it isn't suppose hypothetically if fark wanted a vehicle so so that the so that they needed to rest the exception in order to benefit from this that's that's much closer case your honor and i think we're conflating the the commission of an act with the legal ramifications getting out of your car and giving it to somebody is you know is a bigger contribution by way of the to real so what we don't have in your hand is i'm sorry what we don't know we don't have your honor is this does fork breaking into a store and on her part she was afraid right and congress did not draft the statute with a specific intent requirement you don't even have to know that a tear one that you're giving this box to a tier one organization so if congress wanted a specific inten exemption that's how it's designed congress is it is where a shipment deference to the opinion and i'm curious is to what is in the opinion that was helpful to us that we would not know in our jobs in other words that seems to be whichever difference touches on i wouldn't disagree because what the board did is what the circuit courts did and that is analyzed the statute so the term deference in the context of chevron one is it's used but it may not mean to defer to their to their expertise to the extent that there is any remaining ambiguity and this is the agency that oversees it yes that they are entitled to deference but the third circuit in the sesay case reached this on  comes first as to the contradiction there's no other case like this ok this is not as in mr mankins analogy where somebody is persecuted because he is a police captain and his status as a police captain also makes him a persecutor in this case the very act of persecution against mr hernandez as found by the i j a that makes her eligible for asylum and withholding of relief also makes her ineligible the exact same facts not in related fact the exact same circumstance establishes both eligibility and in eligibility under the government's interpretation of the statute and he self contradictory reading of the statute funks every version of chevron food from her store but as you pointed out judge tony the agency found and the government does not contest that mr hernandez never voluntarily provided any support to the to the far far from it she supported the government that's why they put a gun to her head and that's why they threaten to kill or multiple times and her family that's why they burn down her store and her hotel they persecuted her the very same terrorists that she's being excluded for quote unquote supporting are the ones who repeatedly threatened her life and tried to kill her with respect to the waiver process ok that the waiver process as the government itself says in its brief provides no substantive or procedural right to anyone there is no right to apply for a waiver as two of the versions of the travel ban and executive order proposed getting rid of the waiver the latest and greatest travel ban executive order disney proposed that but the entire waiver process could be eliminated by the executive at any time with the stroke of a pen there is no right to have counsel present at the weaver interview there is no right to an interview at all there's no formal application process to the weaver is purely a matter of executive grace like any clemency circumstance like a pardon by the executive it does not provide mr nand as or anyone else substantive right to have her non discretionary claim for withholding of removal adjudicated in a fair proceeding that meets due process minimums and as the i j explicitly found here if not for the material support bar mr hernandez would be entitled to withholding of removal as the government acknowledges on page eight of its brief and the only exception the only exception as you pointed out judge judge tony that that would apply to her is if she is a danger to the security of the united states she's not a danger because among other reasons she never supported a terrorist but but under the government's reading of the statute the only opportunity that she has to even make that showing it does not meet our international obligations it does not comply with even section two forty one of the i a e a which sets out withholding of removal and it does not meet the chevron test both because it's self contradictory and  because the standard that the supreme court set out in july and explicitly apply to chevron step two and footnote seven of that decision says if the if the agency's interpretation of the immigration law does not relate to the ailey fitness to remain in the united states is arbitrary and capricious and it does not pass chevron and nothing about the government's interpretation of this statute that applies the bar to mr hernandez for simply being a victim of terrorism has anything to do with her fitness term in the country anything she's eligible thank you thank you both will reserve decision