argument this morning is biased against of appeals other than saturday considered the reasoning adopted by the on no court has yet considered that i am aware that the issue has been briefed in some courts i don't understand when you can tell me if you think there's something i'm missing l t g seems to have assumed that all powers that the attorney general possesses are also possessed by immigration there was no holding to that effect in l b j just assume that the boarding khan says that's not true there are powers possessed by the attorney general not possessed by immigration judges and the third circuit in  keep saying saturday i have no idea what sunday or i'll get a monday instructor says yeah that's that's true these powers are held these particular powers are held by the district precedent which says that when a person when congress let somebody inside the us move into an hour off a status that we treat them as if they're seeking admission we meet we deem them to be at the border even though they're not and  i think i understand that point which is well developed in your brief but it would be helpful you know in addressing the concern the judges to work raised which i also share if you could  know essence trace what you think is the path of delegation here from the attorney general to immigration judges for purposes of d three well we think i read sure whether ed bottom you still have to get from a statute that gives power to the attorney general to delegate that power to the immigration judge before whom your client wants to appear to get relief the government's brief who argues that when de three talks about attorney general but that really what was formerly the ins and which is now part of the department of homeland security  twelve thirty five two d the places where it's delegated powers are delegated to immigration judges now maybe there are other places where powers are delegated to immigration judges but i away was to set up a different regime that we can do it expressly in regulation the board looks at it the other way around the board says unless there is a looks at that is sure to answer you're not relying on any of the language to thirty five or twelve thirty five you're just relying on one thousand three point ten well and trying to by the way quote the language you're relying on that you've got a standing request from the panel to talk about language  to be referred to delegated to them by the act and by the attorney general through regulation take a look at it which at least has specific language an immigration judge or shall act as the the rate with the assumption that the presumption that immigration judges exercise the discretion of the attorney general unless there's some specific rule to the contrary thousand and three point ten b doesn't say that it says they exercise the powers delegated by regulation and so that leaves us looking for a regulation that delegates a particular power by the act in regulation there's nothing that delegate in the the delegates any power to immigration judges well their delegates power to the attorney general so we need to get the powers from the attorney general to the immigration judge in some way twelve twenty  takes us part of the way there but i'm not going to say that the argus is entirely kusa it's certainly not and part of it may come to that whether you agree with me that there is a presumption that immigration judges exercise that authority or whether morning and please the court this is a straightforward chevron case it with two parts i mean the first question is whether there was discussion for the board to construe the nonimmigrant waiver in the manner that it did court talks about it it talks about in the context of whether or not there is an exclusion from the general waiver for people who are seeking you he says as opposed to individuals who are seeking pieces from outside the country or seeking t v says and the court said look at the much whether or not the attorney general had that already and so if you want to if this court wants to say that there is some portion of this that to which the plain language analysis does apply it applies to that you add to that question of whether or not you can get a  power indeed three years not limited by the secretary of homeland security's power under the fourteen and let me go back to my concern about con which doesn't seem to actually take on the statutory language and yet somehow finds in regulations a prohibition or restriction on the attorney general's power that is not in the statute itself three right so clearly the board in this case very much as strongly relied on the regulations and coming to its decision i think it took it for granted that this or that this court left open the statutory question having done that it looked at the rags and i think it did feel very strongly compelled by the regs and particularly on the one hand the fact that sate twelve twelve point four did not have provided  effect path by which one of these waivers could be obtained as well as twelve thirty five at least twenty five p as well and that given that there was a specific path given in the regulations for how you obtain this waiver that is you came to the port of entry you sought the waiver before the district director and then you and then what you are placed into exclusion proceedings you then really need that waiver before an immigration judge that that was the only delegation and then from that end  sort of the background principle that authority given to the attorney general if the immigration judge is to exercise it has to be delegated by the attorney general and even under i guess what one of the three ten regulation does delegate powers to immigration judges it regulations the board principally relied on our delegations to district directors this court right and you know the board observed  think with substantial support that immigration judges are not district to records but i have for you the same question that i had for mr roth which is where do we go to find what powers are delegated to immigration judges you look at the regulations generally unless the point four which delegates the train general in a certain contacts twelve thirty five which also provides for renewal before the special inquiry officer who is also an immigration j in so far as we're talking about the train general delegation saying not me not now there aren't any if that's what you are looking for what you could you tell me what regulations to delegate powers to immigration  there are regulations that delegate for example general authority to can say to conduct removal proceedings are there any substantive delegations to immigra point and it is a general right that is the general delegation to conduct removal proceedings and with the attorney general's powers with the attorney general's powers there's also a satellite is that enough well because for one thing this particular waiver doesn't do anything for your removal proceedings if he gets the waiver he still removable in fact the petitioner in this case has an order of removal normally try to get this problem a little bit differently what do you see as the statutory ambiguity that authorised the board to  depart from will be right i think if the board itself looking there first looked at the term attorney general and said well we're given the authority to the trade journal was given the authority to delegate that that's a delegation to the attorney general to make that allegation beyond that there was and maybe one zero one depart from l b j given the court sort of assume the attorney general net the attorney general if you look at sort of the statutory history post two thousand and three said the commissioner of u s c i s that the attorney that any ted that for any of these powers that have been transferred out when you read a term like attorney two thousand and two and what the attorney and journal had general had done with the new fisa had given all authority to ins to adjudicate the way for we wouldn't be here the only reason we are here is because in two thousand and three those ins functions were transferred out to u s c i s so can we go back to conn which is where the started yes let's go back to disk maybe a missive this contract about those statutes saying that l b j was incorrectly decided for a reason that the government never argued in ill d g and that the board didn't mention in time that's not a very good way to try to attack a pres say we get to decide you visas for people who are already in the united states under the three right that is correct that seems inconsistent to me  if you're seeking admission through say for example a u v so sure but we also have the the widespread practice it may not be universal but the widespread practice  the o j regulations and the h s regulations saying when statutes are talking about it mission it also applies to efforts within the united states to change your status like the get a you visa right or  lot of other positions with governments taking  what i think i'm attempting to do there's a t v set and there is a t v so regulation out there with the attorney general and it was originally promulgated i believe in two thousand and two where the a train general expressly provided and those regulations are still out there they're still in the in the statute the regulation i is there a difficulty i mean a con seems to be say we're going to the ambiguity we're going to find in the statute the three there is whether this determination of a waiver context it's saying it's i don't believe that the board is necessarily saying that it can happen somewhere other than that it can't happen somewhere other than at the point of the best ability it's arguing there's a statutory ambiguity d three for people who are not at the port of entry anymore who are here in the united states right yes so the statute means something different for the department of homeland security than it does for the department of justice no your honor it is not just because u s cia asking educate that waiver it does not entail that the immigration judge can or should i don't think the i think the specific ambiguity with regard to admission at the very least has been construed and i don't think the board necessarily said the specific ambiguity with regard to admission is the thing that necessarily ford closed their ability to review it it's that that's the way the regulations have delegated to the immigration judge separately from how it's been delegated to us c i s and that it's easier to have those things the district a good director granted at the point of admission is something that is appropriate for the that the attorney general and for the board to determine who has the authority over to the civilian estate and you're not personally responsible for the confusion in the regulations  authority but it's the attorney general and it doesn't it doesn't make sense to construe those regulations to create a conflict with the statute that's what you said recently or the board at a minimum needs to factor in