but couldn't congress just say that they wanted to just say well you can apply for naturalization if you're in remote proceedings and that's the end of it they would have that power to do that they had that is correct to honor it and and if they if they want to create a situation in which there is a right without the how to really meaning anything i guess they could do that can't i that is correct you know and i believe that the section fourteen but at the same time in that same section in the proviso of that section it says if it leaves the opening for the attorney general to terminate proceedings to then consider the application for naturalization so it would seem like the statute under regulations are trailing the restructuring of the various agencies is that it's the case isn't it that this is a well would you agree with the second circuit's assessment that this is a lot chasing its own tail that there's the way this is set up the only body that can that is authorized to speak to the issue of whether there's prime aphasia case for naturalization can't speak when when the term nation proceeding is underway statute well since the you say they invalidate the regulation are contrary to statute or there's nothing in the language of fourteen twenty one or fourteen twenty nine it's contradicted by by that's i mean a regulation that's been rendered again you know using the language the second circuit that's the child but but isn't that really isn't that just the consequence of the later amendment of the statute they don't get around to amend in the reg but it is what it is however you are nor your owing two thousand and three when the apartment of homeland security was created the regulation not only survived in this section of the regulations that affect the chord but he also survived for some time in the section right of the regulations that are frank the home to department of homeland security there used to be a section and a section to thirty nine point two f that somehow disappear who say that right now yes your honor we do believe i'm sorry but if we were to do what you want us to do we'd have to do it in the face of thirty five years mirror regulation that would allow it to be a could have if they had wanted would have said the dog oh you know what who's just doesn't work anymore that's the whole landscape is they didn't say interpretation of its regulations isn't that controlling unless we find that it's plainly around us are inconsistent we believe that he's plainly inconsistent with the regulation and thirty five year are potations of the regulation is inconsistent with the regulation and or is otherwise plainly rania's as they as their agencies currently stand and as the regulatory scheme currently s there the board of immigration appeals has said the only way the immigration judge can terminate proceeding you see if this all their agency makes gives an affirmative statement decades that's so when it amends fourteen twenty nine and sets up this block how can we assume that that was a mistake and that's nothing congress decided to do knowing full well the state of the law that is the way in which the regulatory regime was administered by the agency owner respectfully they also left him for doing twenty nine in the proviso i second that specifically speaks to the attorney general's authority who terming a proceeding for the specific purpose of considering an application for naturalization i that because i have struggled with that how can you make a prime aphasia naturalization to terminate with out considering what an application by that by virtue of thinking about it are you in the your your point i guess i take it is a third circuit judges will that be a dago's all wrong right that he said and i guess what we're trying to draw from you is what basis would we have for saying that other than that this is a wacky result i mean it's clear that this is not a sensible result it's clear that the way the the the whole thing is working is messed up that's that whole lot chasing its tail observation from the second circuit but other than the fact that there's this mass what is it that would prompt us to say that when the b i a looks at this circumstance at this exact mess and says you know what we're sticking with cruise because we as an agency don't have the expertise to be making naturalization judgments that seems to be the point that they're making in the doggo they they look at those two wings of the of the regulation and they say well when it comes to humanitarian issues we're good at that we can look at that but when it comes to the first part actualization got no institutional expertise that's for somebody else we don't want to weigh in their walk why should we specifically says i believe that close reading of this over the statute shows that there is a difference between a prime aphasia terminations and a consideration of the application because he specifically sa you know why why why is that why has the government allowed this and and since it has allowed it to continue why shouldn't we take the views expressed by your opponent that well that mean there really is something clearly erroneous going on here and consistently i mean around yourself perhaps there is something clearly erroneous plainly erroneous and just downright erroneous going on however it is is not necessarily the attorney general who is the one who eligible to be naturalized in the act and it's going to stretch and we lack however what we lack is the institutional authority to do so and that's clearly present our that's clearly stated in the statute now the regulation that was adopted or was implemented  us some man think distinction that was it was looking at the you know why the past to perfect that on memory but that grammatical terms are but it was looking at that past tense as compared with the present tense in the following phrase and saying taken up after the commencement so even the b a s only trip haitien of it how can that distinction between past tense and present tense be right well i guess it's when you put the two of them together is what they were saying because if if the regulation was meant to that the immigration judges could make the determination in the removal proceedings it would have said when the petitioner or the alien establishes as opposed to has established meaning that it has already the same regulation right and in matter of cruiser look at effectively that same language and when they look at it there's none of this oh it has to be prior to stuff in fact in that very case it was happening after the determination proceedings have begun as it is in it looks like from the reading of this of the statutory language in the regularly in the cases that have determined that that yes the i've got this it's you know it it didn't happen while they were military so it takes out that the promise of one hundred twenty nine asia eligible nobody else can well thirty nine with two f mean anything at all well i don't know that you just can't make that can't make a an affirmative communication i mean if the court is saying that it's not that's what i thought that was in fact the argument that was being made by the government they'd have to consider it to make the pri again what the government's argument was is that because he had not been given an affirmative communication because the immigration judge and obviously you don't affirm of medication that he would then you can put it in the past imperfect if you want but the upshot is the same right it's not only that he didn't that no one could say it's impossible there's no way for it to happen under the under the instruction of the regulation that the government's advocating terminate we move the proceedings permit the alien to proceed to a final hearing on the pending application issue for naturalization point was congress and the problem that we're in now is that as the the second circuit noted or observed is that they don't have the a thought they didn't have the authority to get us out of it it's up to congress and congress to really do the pih changed it all go reconsider dog go and say you know what we were wrong gratian judges cavil's argument is that that's not considering the application that's only thinking about whether somebody says i'm a facial elegy let's not actually considering the application it's simply looking at the factors for naturalization eligibility and saying you know what i think you'd meet that there are but i think that their interpretation of the statute is not on reasonable that's the that's really the crucial chevron deference we have to give is to an interpretation of a regulation as long as it's like well clearly erroneous or at odds with the regulation and when to say it's sort of at odds with the regulation to render it  well there their interpretation of the regulation as they as they read the regulation i don't think that it's clearly erroneous their interpretation of it it's rendered meaningless there's no way out of that box as long as the d i s says i js don't have only if you could only if you interpret a comment about crime of facial eligibility as considering the application for naturalization right you only get to the point you're describing if you sidestep mr kaplan is saying when he says there's a reason to think that it can be made between considering an application for naturalization and thinking about whether somebody i think that you're i think probably can be a distinction drama tween you know considering an application and making part of a determination if that's true if that's true the statute consistent with the statute you could make that distinction case because what other case could there be i'm trying to think of one that really for us t time that you know what kaiser wilhelm said if you have a weak stomach there are two things you should never look into one is the way they make sausage and the other one is the way they make laws and this may very well been intentional what's clear here is given for us to do that would we be getting into policy as it isn't really a matter of policy is that whether or not you can apply for naturalization if you're in removal i think it's not really a policy decision  i believe i do not personally like it but i'm just i'm not just saying it he's cleared that congress this gave all through all of the changes in the regulations and the statute there has been a consideration that in some instances in some instances when he swore that when you have an alien establishes extraordinary situations the judge should be able to terminate proceedings to consider the matter of the station application so i do agree that removable and eligible for naturalization and he's making a decision you know when you say he's both you're assuming he's eligible for naturalization probably is nobody can say that you may be