reasons my client stands sanction for what is a very serious allegation with respect to lax oversight and human traffic it's hard to imagine something that's more of a stain on a company's reputation that they nord a person who in some sense was under their care and simply looked away in this case it's most troubling because the facts on the full record were hidden not only from my client but from this court originally when this case was before the th circuit the government intentionally ignore the department of state never considered in its decision and never brought to the attention of this court  the st appeal that mr mari the thirty one year old program participant was not only not involved in trafficking at all according to diplomatic security but in fact was a participant in the fraud that the fraud of the department of state with respect to the j one visa and my client in regard to what happened here the agency acknowledges that it had this information from the from diplomatic security but never considered it the agency also that it never had any information about the tv's in other words it is just saying my client engaged in lax oversight because the t v s it was issued had no nine paragraph ten and e c f the full records document ninety eight at paragraph six that it never considered anything that diplomatic security did even though it had that fraud can you just clarify one small thing on that document user you just referenced seventy one dollars what is that what are the initials e c stand for that is the agency that actually is involved in the sanctioning i forget the actual title but that that's why they were present at that meeting the because it's not a person it's a no no no that is actually the agency that sanction my client ok and susan geary was involved in that process and she's named through the all of the e mails leading up to that the nd issue i think that's most troubling in this case is to impose strict liability and i think this case shows why the imposition of reading these regulations to impose strict liability is so troubling and it shows how absurd it would be on this record my client was the fraud my client information was hidden from my client and yet the government is standing here telling the court that kinds of problems you have with any strip liability regime so the question is whether the statute of the regulation imposes strict liability we have strict liability in for example drug situations where the very often the both the company and the people prosecutor can say we had no knowledge of it too bad that's what we mean by strict liability so why isn't the the language of the reg is any failure by any  party to comply with the regulations that forth in this park or with any additional terms or condition and discovering exchanges or program ministration this is a part in may from time to time impose will be imputed to the sponsors and gauging such rd party or your honor i think the answer to that question is really twofold one is it has to be read in conjunction with sixty two fifty which is the sanctioning provision and that's sanctioning provision particularly day one makes it clear that the sponsor had to actually do something in violation of the regulations so one of the issues here is how you read sixty two point five a in conjunction with sixty two twenty two gee i guess that is the one and whether or not that means that there has to be some finding that it was for seal ball or at least known to the sponsor and in this case it was not only unforeseeable they were defrauded so yes it's true that there are regulations that provide for strict liability whether the company knew it or not but the reality is there there was the equivalent of what might have been read as strict liability and indeed the government argued strict liability the court found that you couldn't do that unless there was some strict liability is something to be narrowly construed because it can result in appears as but i'm not clear why you think a sixty two dollars k which changes the plain meaning of the of chick because the st provision because it says we will impose sanctions against a sponsor for a violation of the regulation it certainly implies i don't think it's completely clear but it certainly implies that the sponsor had to actually do something itself to warrant the sanction and here  and this circuit or that was not our circuit i'm sorry d c circuit the d c circuit said that you should have at least the opportunity to rebut and that's really what we're talking about here that is you can have a statute that says you're responsible we're going to impute liability but you should also have the ability to rebut it and particularly on the facts of this case it demonstrates why we should have had the ability to rebut it we had none of this information had we had the information we could have pointed to the fact that miss a minor he was not a victim she was a fraudster she was involved in the fraud so there was no way that we could have known about that at the time unless we had the information and the ability to rebut it and so what we're saying is if you narrowly read strict liability at least the parties should have the ability to rebut it in some way to show that it was unforeseen on knowable and particularly here where d we were a victim of a that goes to the separate question of whether there is strict liability strict liability can exist but that still means you have to give both sides an opportunity to be heard citrus century and not act arbitrarily i agree with you on a completely judge or a cough they are separate arguments the strict liability issue is a separate argument on saying is in order to read that or read this regulation in a fair and sensible way you have to have the ability at least to rebut it in some sense and i think that's what the d c circuit said in a moco in effect that there has to be some method in which you rebut the only other lingering issue i think in this case is the one of and i think we addressed that extensively is the issue of harm or sara obviously on this record it is not harmless er given the fact that the company has to bear the stain of being charged with trafficking or in some way having lax oversight over trafficking in a and that will carry with them forever if they wish to have their license extended if there's a nd charge against them and the reason why it's particularly important here notwithstanding the other issues is that it's clear from the record in this case that the agency really based its decision in large part on the trafficking issue it describes it for example as a grave concern and it's notice of intent to impose sanctions one hundred and fifty one of the x or record  the typical process in this kind of situation is an informal process where the agency meets with the party because after all a company like this company has thousands of people that taken care of there are things that happen the what normally happens in this situation is that the agency meets and tries to informally resolve these matters and in fact the legislative regulatory error point if we were to say that the agency erred by relying upon the trafficking allegation or finding whatever you want to call it in light of the sort of procedural defects that you've identified but nonetheless this letter of reprimand because that's all it is at this point otherwise is supported by the other two grounds i guess i don't see why that doesn't get your client basically what you're out what you what you want going forward is is there some reason you know i think that's right and if it's remained a back we don't know what the agency would ultimately do we believe that the proper remedy here is to reverse the district court revamp it back with directions to the agency to have the agency not consider or even consider all the evidence of trafficking one way or the other but if and maybe i misunderstood judge rochefort question but if the trafficking allegation doesn't have anything to do with the other findings and watford said hypothetically we were to get that out procedurally why did the others need to go back at all i mean why why wouldn't we just leave those in place because we don't know whether or not given the way they described the gravity of the trafficking issue we don't know that they would do the same thing again and in fact that's why i pointed to the regulatory history  typically in this kind of situation judge bennett there is no sanction imposed typically what they would have done here is say this person didn't speak english well enough you know give us an idea or a plan about how you're going to prevent  if if the lingering harm to your client is not the letter but the fact that the letter deals with this trafficking as opposed to you didn't pay sufficient attention to her english speaking  ability i mean it's just not clear to me that even if you're right on the trafficking allegation that it does need to get reversed and go back well the reason why i'm saying that is we can't say with certainty whether or not if the trafficking allegation is removed whether or not the agency would then say let's meet informally and resolve this without having any sanction we believe that the reason why there's a sanction at all is because of the trafficking because the other issues a typical issues that are resolved informally between the agency and the company these issues go on all the time and it had not course it does because then the the next time there's a penalty if they decide to impose a nd sanction they can take their license away ok all right you've exceeded your time but we'll give you a couple minutes for a vote on let's hear from counsel for the defendant defendant made please the court might she for the government the other side wants to boil distinctions order down to the department of state's decision to take notice that d h s granted ms m r e t status but i want to start by making clear what the department of state's reasoning actually was there is no dispute that on essays watch essays rd party contractors put  talk about what actually matters to the outcome of this appeal it matters to the outcome of this i know i'm asking you why don't why don't we talk about what actually does matter since that does not matter let's talk about the trafficking so with respect to the decision to take notice of the t status your honor that was not error and it certainly doesn't undermine help me understand the significance of this here to seventy one document because i guess i came to view the  interpretation that your opponent offered of this document as as more in line with reality than the interpretation that you offered in the in your brief so help me understand why this doesn't in fact reflect a conclusion on the part of an entity within the department of state that actually is responsible for conducting investigations into this kind of matter does it reflect a conclusion that actually there was no trafficking and as your opponent said if anything this person was was was a knowing participant in in fraud against our government so i think there were two pieces to that question and the like to take them both in turn your honor so as to whether there was a formal determination or not you know based on the record before us and based on the representations that the state department has given me the bureau of diplomatic security never made any formal finding one way or another and so the e r two hundred and seventy one death so help me understand what's reflected there because i read it and it seems to say that so what why am i what are we missing if we look at the plain language of this document we're missing the fact that that was just a summary of the e mail correspondence that was exchanged between e c on the one hand and yes on the other so let me just read language and you can tell me interpret st of all what is easy stand for in this document i think it stands for economic and cultural affairs so i think it's ok so it would be wrong that right so i'm looking  q concluding is a reference to was as far as i understand it this e mail at the bottom of two hundred and fifty two carrying over to e r two fifty three dollars which represents the view of one particular special understanding is that the bureau of diplomatic security never made a determination one way or another but to go to the nd piece of your question your honor and this is one reason why i began the argument by referring to the department state's other  decision was made so how could they compare the sort of a waiter gravity of those facts to whatever h q whoever that is whatever that is in terms of the conclusion it was made on the d s side teams to me the agency had to at least  say ok well we did investigation this was even are tentative conclusion i'll grant you that maybe there wasn't some formal conclusion but we did in investigation this was our plenary finding we have it's a black box on the other side we have no idea what they have relied upon so how could it rationally make a decision to credit this other agencies finding over its own plymouth ari funny that's what i guess i don't understand in a student question on or it again i i want to try to offer to responses to that the st is again my understanding is that it's quite hard in fact to obtain these records from a separate agency because there might be some protections accorded that information so you know although i'm not sure of that may explain one reason why the department of state  not have those records from another agency in front of it but going to the other part of your question which is whether it had to under the a p s a whatever happened and even accepting the other side's version of events does not undermine the reasonableness of what the department of state ultimately sanctioned essay for we so he that we have no way of making an assessment of your claim that to that because there's we you well we don't know what's in the black box and  over the agency doesn't so i don't just i don't see how i don't see how and agency he could rationally explain to us that listen we looked at all this here's the here are the reasons why we credited this is finding whatsoever into how the agency rationally came to that conclusion and i don't think it could provide one because it never found out what was in the black box you're right your honor so i'll be the st to admit that in the agency's initial notice and in the final decision there's no reference to this material either from d s or you know the underlying records from the t status determination if you wouldn't mind i would like to explain why nevertheless we men would be inappropriate to try to get the agencies of us to that question remain would be inappropriate because the agency's reference to state status comes as the rd of three regulatory findings and what the agency found was that essays acts of omission and commission had or most importantly could have had the effect of in danger in ms mari said the way the tea status was used in the agency's reasoning was as follows st and you can see this on page forty eight of the excerpts of record the agency said mari didn't have enough english and nd the agency said ms mari wasn't doing an actual training program is a marty was actually you know flipping crepes in a kitchen and that is sufficient to put her in incredibly vulnerable position that could have had the effect of endangering her and then the agency referred to the tea status and if you know the way did so was to say look we're not crazy because another agency has said that maybe she in fact had been the victim of human trafficking but whether she was or was not has no bearing whatsoever on the basis of the sanctions decision which was you know whether mr mari was brought by fraud into the united states or whether  willing participant in the fraud that just doesn't have any legal significance to whether us days you know lack of oversight over its rd parties could have put her in danger whether she was a trafficking victim whether exactly the department's position is the lack of english and that this really wasn't a training program could have put anyone in that position endangered yes your honor and you know the reason we know that is again the agency says and this is the karaoke mountains on your forty eight over to your forty nine the inappropriate selection of ms m r e and the failure to ensure ms amar has possession of sufficient english language skills had or could have had the effect of endangering ms mari's welfare so you know it's true as the other side points out that the agency didn't further say even if we weren't permitted to rely on the status determination by d h s we would have reached the same outcome but you know the a p a doesn't require that degree of analytical precision from the agency as the district court acknowledged what is important is merely that the agency's path can reasonably be discerned and here you know the vast majority of the sentients order if you take a look at it your honor it goes all the way from you know very detailed factual findings spanning several pages none of which are contested any longer the thrust of what the agency was talking about were in fact those independent regulatory violation ok well that's fair enough and maybe you're right about that but how do you respond to councils your punnets argument that they say listen if you want to send send it back and have the agency tell us that ok fine well but totally put aside any kind of trafficking that you know the brand of you buz facilitated human trafficking on the company and the allegations or the findings that it has not it's now not even contesting or fois of sufficient to support to the letter of reprimand why not just let the agency do that as opposed to i think that your opponent will say otherwise we're sort of left you know with this stain on us that for all we know could be invoked later if if any further problems come up in the future so the other side's argument reads into the order a sanction that is not there and reasoning that is not there so you know the sanctions ordered does not say assaye is responsible for human trafficking the sanctions order does not say you know assay allowed the human trafficking to occur or participated in the human trafficking or anything right so they are just simply wrong to characterize the order as saying that what the order says is that assaye had an obligation as a designated sponsor doesn't have to be in this business but it had an obligation once it got into the business to make sure that people who entered the united states on the exchange visitor program which is created to you know maintain friendly relations with other countries by making sure their citizens when they come here are not mistreated fell down on the commission which had or could have had the effect of in danger a missile mari's welfare the office also really love upon the grant t nonimmigrant status by the partment of homeland security as  is devoted to the trafficking so they clearly placed important reliance on this of least you're right they had a lot of other stuff as well but they certainly significant the agency did view it as significant your honor but it bears underscoring what the agency thought it was significant for so as i was saying earlier the regulation that i say violated was that it's actions i see my time is expired please continue the regulation that as a violated was that its actions could have put me as a mari at risk and so the state department indisputably found that now you're right you're right or that the state department went on to say you know and by the way we think actually according to the department of homeland security in the grant of t status that you know human trafficking would have occurred but that doesn't undermine the state department's finding that and that's all the point not only did they do it in the final decision but in the notice of intent to impose sanctions it's much stronger pages in the excerpt the record of one hundred and fifty one they say as stated earlier department is gravely concerned that a program sponsor could exercise such lack of oversight that an individual on a designated program would be subject to treatment sufficient to warrant issu in the paragraph where it says proposed sanctions it goes through that in great detail so this isn't just another factor and i think judgment and to go to your point  yes it is true that there are other factors here but we don't really know if this factor is a limited and if they consider the evidence remember the fraud here is a mari's fraud that she didn't speak english i don't you know we chose for lots of reasons not to get into those two other issues but we would get into them if this case has remained at for example this is a woman who presented to us that she had ten years of speaking english she took four courses at a university where in three of them she got a's and b s in english the facts that the government points to in its final sanctions the solutions are actually things that occurred after we learned about her making claims in other words in february of two thousand and twelve there talking yang statement that when she spoke to her after everything came to our attention that yes maybe she didn't have sufficient english my only point is that if we go back on re manned here now knowing more than we do and by the way we didn't even get half of the discovery we requested i mean my sense is there's a lot more information in the diplomatic securities office and in the department of state's office if you notice a these documents are redacted so i think if it is reinvented back we would at least have an opportunity to argue why we were involved in lax oversight and her english speaking when the when the visa office the visa when we had no idea that she knew that she didn't speak english and was working with a contractor by the way who wasn't even our rd party contractor which judge rake off goes to the point that you made about strict liability they're imposing strict liability against us for somebody who's wasn't even our contractor global associates we didn't even know about them so it's hard to say even if you did impose strict indication on document two hundred and seventy one there's absolutely no foundation for that whatsoever i know judge watford us well what other evidence is there about two hundred and seventy one that's just something the government's made up to fifty of one officer that's what they're trying to say that two hundred and fifty two into fifty three is just of you want officer but the reality is it says that headquarters reviewed this and made a determination that's what document two