please the court i'm judith wood and i'm representing mr jang it seems to me your honour's that the issue in this case is very straightforward it's the tension between the interpretation of the human rights the client instead of going to south korea had gone to south africa and he had been there for four and a half years gotten educated got a job got passport would he be firmly resettled in south africa yes so what text in the statute the north koreans human rights act statute in your mind affects at all the decision about for resettlement which does not well choir nationality it's just about whether you have found a new home where you're not persecuted what  text you rely on and i'm looking at section three o two of the north korean human rights act which says the purpose of this section is to clarify that north koreans are not barred from eligibility for refugee status or asylum in the united states on account of any legal right to citizenship they may enjoy under the constitution of the republic of korea and it is not intended in any way to prejudice whatever rights to citizenship north koreans may enjoy under the constitution of that suggesting death did resettle in south korea he also got his past for he was able to travel or enjoy some of the other benefits of being a south korean citizen so how does what you've just the interpretation of the north korean human rights act was that it did not preclude those north koreans who settled in south korea from asylum the reason for that is no view though of the legal conclusion that because i feel like the argument a little bit of trail from the way i'm about the way i was one just looking at this so it seems to me that if if someone is firmly resettled in south korea then the statute doesn't really have that much to say in my thinking and the more important question is in terms of circuit law and one of other circuits what does it mean to be firmly resettled and what is the significance of travel restrictions so that if one when when your client went to south korea he was for years not allowed to travel couldn't leave the country didn't have a passport what does that say about whether he was firmly resettled and also does it matter what's the significance of his belatedly getting the passable well he wasn't given a passport for several years because h residency in south korea was restricted not only that but he tried to come to the united states before generally north korean refugees were not allowed to apply for refugee status in any other place than south korea in fact if they went to and the seas u s embassies or other embassies in other countries they were returned it is returned to north korea or directed somehow to the south korean embassy so they weren't really given a choice in the matter neither was mr chang and he remains in south korea as a consequence of his flight from north korea his intention was always going to come to united states but he was unable to make that voyage until he obtained passport and in terms of the question that school was asking you the fact that he had earlier been subject to restrictions what difference does that make because the question of for resettlement looks where he was ultimately he was never harmed in south korea and ultimately he was able to be educated get work get a passport as i understand your brief you have trying to say is that under eight c f r twelve zero eight point one five a person is an exception to for resettlement a person is not firmly resettlement if entry into another country or status in another country was  necessary consequence of flight from persecution that's what the statute says so he had to go to south korea there was no choice it was a necessary consequence because he could not be accepted in any other country and all the legislative history starting with two thousand and four two thousand and eight in two thousand and twelve says the united states is very concerned about north korean refugees and north korean asylum seekers and the united states is further troubled by the lack of access afforded to the united nations high commission on refugees to north koreans that's the problem throughout plus when you get to another country you're not allowed to go if you're a north korean refugee to any other embassy and in china you're not allowed even to have any kind of interview you're just repatriated to north korea where you are you face certain death so the only the only door open to these people was south korea and the whole idea of why that matters if if in fact people are firmly resettled made a life in south korea i don't know i don't see in the text of the statute a ny indication that it is not possible for someone to firmly resettle in south korea the operative section which is section b seems to be aimed at the problem of considering someone a dual national of north and south korea because if you are a dual national and you're seeking asylum here you have to prove that both of your countries persecute you and south korea didn't persecute people in general it is that the sole purpose of this statute is to is to make people single nationals for purposes of understanding their previous persecution well your honor with all due respect the south korean constitution regards anybody living on the peninsula the korean peninsula as a citizen of south korea yes and that's the that is the only problem in my view that this statute is designed to deal with this to say well that makes it hard for someone from north korea to ever get asylum because if they're considered a national of south korea even if they never set foot there they they can't prove they were persecuted there so so in order to prevent that bar the statute says well you're only going to be a national of north korea and if you've been persecuted there you can still seek asylum example that the the k r y decision uses the word a veiled a veiled that written that implies some kind of conscious action on the part of the refugee in see in south korea in fact there is no conscious action so the routine is this they get to south korea they are put in a place called hot on with their very restricted it's basically a reeducation camp they're not allowed to go out they get out after a few months et but they never apply for citizenship in south korea as you know in the united states it's quite a rigorous routine and can be denied at the last moment because of all kinds of reasons these people never apply never have a test nothing happens they're considered citizens before they even entered so a veiled the word avails is it's not a path we're talking at cross purposes of c i guess it seems to me that there is a very narrow point to this statute which  allow someone to seek asylum as if they are only a national of north korea we ignore south korea in terms of being a national but my problem following your argument is that it does not appear to me that the question of for resettlement relies anyway on being a national to go back to my example of a person may be firmly resettled in south africa but not be a national of south africa and so it seems to me that the statute is just irrelevant situation here of course i follow your idea your honor regarding family settlement but it really doesn't apply to north korean refugees because they is it your position that no north korean refugees can ever firmly resettle in south korea period no matter how long they stay or how wonderful their there life they haven't firmly resettle because they were already it is my contention that they haven't firmly resettled because they would there's not resettled they were already considered south korean or they don't know what this really does to south korea and is there for twenty five years has a family is you know one of the wealthiest people in just doesn't it would have to follow from your argument that in my hypothetical my person also was not for immigration well i mean you're raising an interesting situation but it's not the fact pattern that we're dealing with test whether they consider themselves firmly resettled so if someone says well i know i've been there twenty five years but i don't consider myself firmly resettled that is positive well in this case he wasn't there twenty five years in a soon as he got a p left you don't have to answer my question but does it matter whether a person themselves consider themselves to be firmly reset i think it would matter yes but i think this case can be distinguished from the back pattern which  slightly different angle what is the purpose of firms resettlement doctrine and asylum law why why do we care if someone's firmly reset why does it affect their ability to get a sense the philosophy behind the law is that if someone has a safe place to live and they don't fear persecution and they have not been persecuted in that place then the statute as far as asylum doesn't apply to that person because and that's likely is a person who fears persecution so let me accept that so south steps south korea as well established there why can't they be considered from lee results because it is not a resettlement in the north korean south korean peninsula the south korean government considers them citizens before they even a right to so you're saying they're settled in south korea from the outset right from birth ok thank you good morning your honour's may it please the court i'm going to lose for the attorney general your honour's this case raises a question of pure statutory construction and it's important at the outset to recall that the objective of statutory construction the reason we're all here today is to determine what congress is intent was in drafting and acting a statute and give effect to that intent it's not our job to reconcile us statutes with foreign constitutions or to determine which interpretation of a statute would have the best practical effect for a particular petitioner the question is only this what did congress intend to do when it enacted section three o two of the north korean human rights act and in this case we can determine that purely on the basis of the statutory text and we can induce that we can determine specifically that as your honour's touched on in your questioning of counsel for petitioner this statute has no bearing on the firm resettlement bar here here's my question to you looking at the regulation and for resettlement i take counsel's argument to be that firm resettlement cannot apply because under the regulation ellen is considered to be firmly re settled if prior to arrival in the united states he or she entered into another country and or certain conditions and i take part of her argument at least to be there not entering another country because south korea  of all to be want to entry so they can never be firmly resettled what are you sure response to that what i have a few points in response to that your honor in the first of them is that that issue has been waived before this court there were a number of different arguments that were raised before the agency but in the opening brief the only issues that have been raised have to do with construction of section three zero two of the north korean human rights act and its applicability if any to the doctrine affirm resettlement so i would respectfully submit first that the question of whether north korea and south korea are one or two different countries which was raised before the agency and the question of whether mr jang did in fact firmly resettle in south korea which was raised before the agency neither of those have been raised before this court and therefore they're both waived your honor i agree with your interpretation of section twelve zero eight point fifteen of title eight of the code of federal regulations but i'm afraid i can't answer the question any farther than that simply because the issue hasn't been properly placed before the court if i can interject two questions of course for you if you were the same questions i asked your colleague on the other side first of all what is the purpose of resettlement doctrine related to the a sound loss your honor i'm afraid that i do not going to be able to give you a satisfactory answer to that question i can direct the court's attention to footnote four in its opinion in a deal from two thousand and one which sets forth a very comprehensive history of the firm resettlement doctrine if it isn't opposing counsel says the statement essentially correct that the whole point of it is that you don't need asylum in the united states if you have found a nother country that is safe where you can leave after life it isn't that more or less a correct statement i believe it is your honor i think that makes a lot of sense the only reason i'm hesitating  answering judge gould's question is because i'm not aware of what specifically was the intent when that was made part of united states why can't cite an authority for that so i can't represent exactly what the intent was but your honour's point maryl taken as a matter of logic opposing counsel correct in the general philosophy let me just make sure i understand which aspect of supposing counsel's argument you're referencing you're saying that's the answer to judge schools question that  law in the united you don't need asylum in the united states if you have settled in another place where all is well yes your honor as a matter of pure logic i would agree that is a purpose of the doctrine ok then counsel my second question  the travel restrictions so what is the significance if any of travel restrictions on a person when they landed in the new place  and whether they are firmly resettled and if they had restrictions for some number of years but at the end got a passport does that have any significance honor it it may have some significance but once again i'm afraid i have to preface my answer by pointing out that the question of whether mr jang did in fact firmly resettle in south korea has not been raised in briefing before this court and therefore it's been waived the only issue before the court is interpreted in section three zero two of the north korean human rights act and determining what if any application that statute has for the for resettlement doctrine but in an abstract matter your honor i can tell you that there is an exception to the firm resettlement bar that is in title eight section twelve zero eight point fifteen of the code of federal regulations and it states that a person that is conditions of residence in the country where the petitioner may arguably have resettled are so substantially and consciously restricted that that person is not in fact resettled that may create an exception to the doctrine affirm resettlement but again any argument that mr jain fits within that exception while it was raised before the agency has not been raised before this court the court's not called upon to decide it that was a satisfactory answer don't we have to look at resettlement whether or not it occurred here or not i mean isn't that implicitly involved in issues we have to decide  respectfully your honor i would suggest that it is not i would argue that whether mr ging firmly resettled in south korea is one question and whether section three or two of the north korean human rights act was intended by congress to create an exception to the former settlement bar for north koreans who resettle in south korea is a second question so to put it another way the first question is whether mr jang fits the conventional test and the second question the only one put before this court is whether irrespective of the first answer settled and my answer to the it is respectfully that that question has been waived it was raised before the board but it was not raised in briefing here at that time yes i assume that your alternative argument would be if we have jurisdiction over that question that there is substantial evidence to support the agency's conclusion that he was firmly resettle because of the passport the job the college the brother the sister etc your honor is absolutely correct there are multiple and  point mr jain conceded that he had what he termed in disha of resettlement he was issued a passport he was given a household register a registration record registration id card pursuant to a special program designed to resettle north korean refugees a certificate of completion of a socialization program he went to school he held a steady job his family moved there with him and he resided there for four years these are clearly edition from resettlement to return to your honor's question this is the second point in my to question analysis of this was whether the north korean human rights act specifically section three zero two creates an exception for people mr james position such that we don't even need to ask whether they've been firmly resettled in south korea the answer to that question is emphatically no it does not create such an exception we can determine that here from the plain language of the statute we don't even need to determine we don't need to resort to extra textual sources we don't need to determine the statutes ambiguous the plain language of the statute shows us the congress did not intend to create such an exception section three o two a should we start with rio two b which is the operative language well as a statute whatever it does and it's nice when congress tells us what it had in mind but don't we have to start with what it actually said it was doing which is section  b your honor i'm happy to begin with section three zero two b but i just want to make sure i answer that question fully it sounds like your honour's referencing an argument raised in the no i'm not referencing anybody's argument i'm asking you whether if a statute says here's our purpose and then goes on and says here's what we're doing you know that i shall do x the shalt not do y that we start with the operative provisions and if they are clear we're done if they're not clear then we look back at the purpose to make sure that the interpretation of the operative sections accords with the purpose i would have don't we always have to start with the operative section of the statute as the the place to begin because that's what congress actually did as opposed to telling you what it was thinking your honor i'm not aware of a case it's basically holds that that is a very sensible approach to look first at what congress said the statute would do and secondly to look beyond the operative sections at other parts of the statutory text ok that is what what in your view what is subsection be the operative section accomplish and and how if at all does it relate to the doctrine of for resettlement  your honor i'd like to briefly preface my answer that question if i may very briefly we don't agree that there is a prefatory and an operative section between distinction as between s three a to a and section three a to b they both character to a justice purpose it's a purpose and it says the purpose is and then it says it's not intended to do this or that so it's about what congress was thinking so would you answer my question about subsection b what in your view is subsection be doing what work does it do and what relationship if any does that operative section have to the doctrin resettlement absolutely or under section three or to be has no effect on the doctrine affirm or settlement as it applies to people in mr james position mr james argument is that it creates an exception such that the for resettlement analysis becomes an  in his position that is not the effect of this language it doesn't mention the former settlement bar all it says and the firm resettlement some regulation doesn't mention nationality correct i don't believe that it does your honor i doesn't require that you be a national of the place where you firmly reset no it doesn't your honor this court has held that the former settlement bar inquiry focuses on the existence of l non of an offer of some sort of permanent resident status or citizenship separate incur excuse me for a separate increase what the court is what the congress is looking at in section three zero two b it is your honor identified earlier the question of dual nationality one arsenal one weapon in our arsenal here a statutory construction is looking at the ordinary language the ordinary meaning of words used in a statute the spring this court held that in us the buckland and if we look at the definition of national we find that it means one who owes allegiance to or is under the protection of a nation i'm citing there to tempt edition of merriam webster's dictionary but i'd point out that section one hundred one hundred twenty one of the i and it's for the exactly the same definition and national as a person owing permanent allegiance to a state with section three a to b does it clarifies that  a national of north korea shall not be considered per se a national of korea and this makes very clear sense your honor because it would be difficult given the tensions between the two countries to be a national of both of those countries one who becomes a and if a north korean who had never set foot in south korea would face the problem of having to prove persecution in both places in order to obtain in the absence of this statute would have to prove persecution in both countries in order to become eligible for asylum yes your honor and what the section i'm sorry is so so it's it sounds like you agree that the main or perhaps the only purpose of this is to allow a north korean who makes their way to the united states who has not who is not otherwise ineligible for refugee status doesn't have to prove that they've been persecuted in south korea  to your honor's if if we expand the scope of our inquiry beyond the pure language of the statute and look at matter of care why and the house of representatives report that it cited we can see exactly what the purpose of congress was an act in this provision and it was to respond to an interpretation by the state department or to a policy of the state department that north koreans because they enjoyed an abstract perspective potential right to citizenship under the south korean constitution were being treated from the very beginning of south korean citizens and are being excluded from the united states asylum and refugee assistance programs congress specifically stated in this report that its intent was to side with the immigration courts and to push back against the state department's presumption that because a north korean could go to south korea they must be treated as a south korean citizen for purposes of asylum i hope that answers your question your honor that is the point the congress was intending to reach but in order to get to extra textual sources like that the court would have to determine that the statute is ambiguous which means that it's plain language doesn't inform us as to what congress is intent was if we enter that sphere of statutory construction we would submit that the court should grant deference to the board's decision in matter carol why under the chevron case because what the board is done there in a matter of care why is a very reasonable construction of what we argue is not an ambiguous but of what the court may well this section that you're talking about section three a to b says when applying for silent the section two zero eight a national of the democratic people's republic of korea shall not be considered a national of the republic of korea that language is pretty clear meaning that a person from north korea is not considered to be a citizen of the republic of korea however there korea considers that person to be a citizen and apparently the board of immigration appeals considers that person to be a citizen of south korea so we have a great conflict in his testimony mr jang candidly knowledge that i don't fear going back to south korea i do not like it in response to fall of questions they don't have a fear of return to south korea i don't have to hear but i hate that he said that he wasn't afraid however he suffered in south korea one of the consequences of him being in south korea was that his brother in north korea was executed his brother was arrested and eventually executed so even though he may not be personally afraid that the situation gave rise to persecution of family members in north korea because of his presence in south korea and so that according to case law he he's eligible for silent simply because of that because of his brother's execution based on his presence in south korea his presence in south korea gives rise to a pan of play of unforseen consequences to his family members who us i understood the issue before us to be whether the statute prevents operation from resettlement doctrine in this situation i did not understand gets reinstated by congress and in fact made more liberal presents an issue which may not be exactly within your domain because it presents a human situation beyond the scope of what this court has considered before i think and that is that these people who are playing north korea and going to south korea have no other open door to them that's what the statute is concerned with particularly if you read beyond section three  two it's particularly concerned with the united states reaching out not only to north korean refugees in north korea but dealing crippling magically with other countries in the world and with south korea and allowing it i in the two thousand and twelve version of the statute it talks about working it out with north korea with south korea so that these people can have access to u s consulate heretofore they are they have been restricted