good morning good morning agree that the case should be remanded on those two questions the other ones exactly so i'd like to focus on on asylum we are here to to harmonize as best we can the asylum statute with the reinstatement bar the text structure or history and purpose all indicate that the reinstatement bar should not displace the whole asylum regime the reinstatement bar the congress passed it was to prod nobody disputes that because the agency itself carved out withholding and cat those to carve out solves some of the problems but not all of them and they reflect that the phrase any relief in the reinstatement statute does not actually mean any relief and the better view is that the reinstatement bar does not apply to any refugee issue whether it's raised in withholding kat or asylum there is no principled way that withstand scrutiny to differentiate withholding and kept from asylum as a relates to the reinstatement bar we recognize that this is a difficult issue because of the seemingly prod nature of both statutes by contrast the government  blinders and focus only on one of the two statutes we think to do justice to the whole i and a the court needs to look at both statutes and reconcile them as best i can the vast majority of individuals in reinstatement status do not seek asylum as a result we can still on or the broad purposes of the reinstatement bar so take me through the language the plain language of the reinstatement bar that says the alien is not eligible and may not apply for any relief under this chapter right that's any relief at all under this chapter can't do right what we know already that that those words do not mean what they say you know because the agency itself and this court and other courts have repeatedly said notwithstanding the seemingly broad nature of that statute notwithstanding the broad text of the statute and individual is intitled to withholding tat you visa other other forms of relief so we know that congress passed a statute that was just too broad so the question is you have to  because it does not matter whether the relief is discretionary the right to seek the relief is not discretionary and what's being withheld in this case is not the relief we haven't even gotten there yet what's being withheld is the right to seek relief this was not an exercise of discretion this is the government saying there's an absolute bar to to do applying for asylum relief so we know the statute cannot mean what it says and  courts have held over and over again that notwithstanding that broad bar other forms of relief are available including others and in the same chapter so ok it says any relief under this chapter and you're saying well that's that's too that's too broad and so we can because you know that there's carve outs and so therefore the car about should also include asylum right right well then what doesn't it include so i don't have  would still include for example cancellation of removal voluntary departure certain forms of waivers so all of these forms of relief that are not under the humanitarian asylum refugee contacts would still be available or would still be that limits referral in reinstatement cases to withholding and cat what sort of deference do we need to pay to that well that's an i'm glad you asked that your honor but first of all both parties think that this case should be resolved on the statutes not the rules this court issued an order calling for the government's position on those issues the very first page of its brief so that this case should be resolved on the statutes those rules do not should not be given deference in part because the government will not answer the simple question of whether this rule was actually intended to represent the agency's resolution of this question the rule it's the text of the rule itself does not bar asylum the text of the rule itself creates a procedure that can be used for kat and it can be used for withholding but the text of the rule itself does not bar asylum really the government also waived any reliance on deference by not raising it on the answering brief even though we fully briefed it i think we spend ten ten plus pages on it  the opening brief you also have several problems with with the administrative procedure act the failure to follow notice and comment rule making and we understand there are other rules on this point and we recognize that but none of those rules actually address this issue and none of these rules to the government set out to answer the specific statutory question that we have to tell your tradition that both you and the government are saying forget about you know forget the normal round rules if you will for how one considers that right so after you go through the normal tools of statutory interpretation we believe that the court will find that asylum relief should be available and reinstatement status those those three circuits the second circuit the fifth circuit and then just as of monday the eleventh circuit but if you look closely at those opinions those opinions do not really grapple with the issue here they they do not make a real attempt to particularly the second circuit in the eleventh circuit do not really grapple with the plain language of the asylum statute and none of those three courts applied any standard interpretive canons they did not make any effort to resolve any ambiguity as in favor of the alien there is no way to reconcile the holdings of those three courts for example with the provision in the asylum statutes for successive applications and there is no real legislative history analysis in those three opinions indication of how this panel might consider but as you know certain members as frank or one of them as recently left us was strongly opposed to relying upon legislative history where we do consider legislative history and our objective review of the statute what specific history would your refers to well i certainly take a point about justice scalia's position on legislative history this is that the type of legislative history that we are presenting to the court is not the type of isolated floor statement or committee report that he appointed so much this is looking at the way in which congress and acted these statutes what specifically what do you what are you referring  you say it's not a law it's not a committee report it's not some members comment what are you referring to so the same it's the same an act made by the same congress and it did the following things it broadened and really enacted the the the entitlement to apply for asylum it performed the scheme for asylum claims including adding new exceptions to that statute those exceptions had cross references to other statutes so the congress certainly knew when it was creating exceptions to the asylum statute how to cross reference other local stuff what you're saying is the fact that the statute was intended to do other things beneficial things in terms of asylum should influence or think you know what they could have possibly meant by this bar is that right well what i'm what i'm suggesting is that because it's the same congress and acting the same statute that it apparently inconsistency here and that if you look at what it did and what it knew what the congress knew how to do in this statute i think the best thing that the best intent that we can find and that's and that enactment is that it intended to add new exceptions for asylum but it did so in the asylum status by counsel i don't look at that as legislative history that your construction of what congress intended to do but it's not what a member of congress or committee or anybody said that's you're talking about something much time was on the clock to begin with i'd like i intended to save some time and get fifteen minutes and now you've got less than two ok i'm sorry i will i will sit down thank you work on behalf of the the government's position in this case would require this court she draw false dichotomy between relief and protection that as not exist in the statute or the regulations their interpretation requires the any relief language sure your honor the any relief language in top thirty why a five certainly seems broad on its face but our position is that you can't take that language just at face value because for a few reasons first the rate of the word has no bar on any relief it doesn't say any relief except mandatory relief so it doesn't that the court of the government's position also asked the court to read in an exception for the forms of relief that are mandatory you know our your hon asylum and at eleven fifty eight should be the only determinant on who should be able to seek asylum first of all asylum is temporary the asylum statute is not a right to remain in the united states permanently and this ability to terminate asylum status makes it much more like and knew how to do so using a cost reference there is no cross reference ref to twelve thirty one eighty five and withholding one is the both relief well they're both protection but i can pretty easily explain the difference between relief and protection for the court so when this reinstatement provision bars all relieve as referring to these twelve thirty one that is a statute that refers to execution of removal orders and attention a move order has been entered but in this case there is something that prevents execution that move the order because there is a clear probability of persecution in the country of removal that move order stays in place and in fact can be executed to a separate country is simply a restriction on removing that individual to a civic country on the other hand there is relief in the form of asylum and all of its attendant benefits just like cancellation we've all just like i just know status where once they obtain relief in removal proceedings that does away with the removal order the move order goes away and they get relief and they're on a to loft permanent residency and eventually citizenship they can also petition for relatives to come in and also importantly all three of those forms of relief are discretionary they don't have to be granted by the attorney general cancellation adjustment discretionary they all lead to lawful permanent residency and they all get rid of this removal order that we were to not be reinstated again versus protection holding ruling capital action it's also clear the congress invision the difference for relief and protection when you look at eight u s c twelve twenty nine a c four that's the burden of proof statute the aliens have to were instructed aliens or non citizens what they have to do to establish eligibility for relief in that statute there's the exact phrase the burden of proof is on the non citizen for an established eligible for relief or protection so congress clearly envisions some difference and that's what the difference is and explained corresponds to holding over move on because that imposes article thirty three an obligation the united states is a signatory nation to use the word non family which simply means we can't return that person under an obligation not to return that individual to a discretionary mechanism was from court explained to perhaps grant a broad form of relief but it's not protection it was a pathway to admission and permanent resettlement that congress elected in their discretion to create and that's the discretionary review bar twelve fifty two a to be i were talking about all these different forms of relief that have discretionary terminations involved in the discourse quoted from reviewing at the end of that paragraph whatever it states other than the granting of relief under section eleven fifty eight ounce let me just ask you this is all interesting when i hear your opposition indicates that the government and the proponents here believe that this matter should be resolved on the pla language of the statute without reference to the regulations what's the government's position on that there is a position as it should be resolved in plain language but there is a regulation that the court oceanfront deference to because that is not provide any relief and only provides protection she has so from your perspective the statute is not ambiguous correctly or but if we find it so we that allows someone to reside for temporary period they can seek to renew your visa but it in itself is not relief as you're having under the statutes it's a temporary thing where worse whereas you look at just one status cancel move move on asylum saying language to work because if you think of relief us in the common sensical you know sense of the word then relief is much broader than that exception to this bartley knows how to do that as this court pointed out and the da version asked prop which the two thousand three case it looked at the life act which is the two thousand amendments but in this case it was about can special so in congress wants to take back from that clear categorical bar and knows how to do so as far as any conflict between eleven fifty eight and twelve thirty one and five there's simply no conflict eleven fifty eight states any relief anyone can apply for that re move just like adjustment status and lays out a bunch of qualifiers and exceptions to that and reinstatement is another exception to that exception to all those categories of relief in fact and it states that anyone who specific subclass non citizens go through the process they've been through proceedings have had the opportunity to seek relief if they've been afforded that process they have been physically removed and then they choose to legally come back into the united states then they are simply bar from these forms of relief very good thank you very much the government will give you a couple of minutes to  moreover even if that distinction holds it does not solve the issue with the statutory text in the asylum statute and if that distinction made sense then the courts and the agency would not repeat of the acknowledge that the reinstatement bar is not as broad as it seems and like to have briefly address chevron deference first of all the agency has taken a heads i win tails you lose a position that's not permitted under the law that says first the statute is clear but if it's not then we get deference that doesn't work because the healer river case from this court says that it an agency decision based on the incorrect view that the statute is clear does not get difference though from your perspective court new stance or the it's the statutory interpretation cause we don't look at the regulation from your right particularly because the text of the regulation that is does not actually address asylum and if you look at the background in the in the rulemaking for the rule it doesn't purport to address this issue it assumes th conclusion in the healer every case says without an explanation of the agency's reasons it is impossible to know whether the agency employed its expertise or simply picked a permissible interpretation out of a hat does it doubly apply when the cross references to other sections and if we have two possibilities one in which reinstatement is an exception to asylum and the other in which asylum is an exception to reinstatement with all due respect to the government that humanitarian purpose of the asylum statute should trump the processing efficiency of the reinstatement