resulted in a five hundred dollar fine and a conditional discharge under new york law that governing jurisdiction a conditional discharge is used when quote either the public interest or the ends of justice will be served by sentence of imprison mr sunday pay the fine appeared at later court proceedings and was not to tangle several years later on the other hand we have removal and a permit for three hundred permanent separation from the only home he has known for the past twenty years from his longtime fiance and three children all of whom are u s citizens the record establishes a profound impact on mr sunday and his family for one child he's the only remaining parent for the other two he's the principal in other cases in terms of visibility needed to make this type of challenge so that really boils down to the central question in this case your honor and that is whether this is punishment because as you reference the cases back from eight hundred ninety three and that time period say that deportation at that time was not a punishment but removal today is substantially different from that especially when it's the result of a criminal conviction in fact those very cases distinguished the type of situation we have here where they call the transportation at the time where there was a quotation as a direct result of a criminal conviction so even those cases back in eight hundred ninety three in the case in one nine hundred thirteen they actually distinguished what we have here today and when we go through the various procedures that the test that we have to determine what is a punishment remember that that test has also changed as we've learned more as a country the test for you the last day in this court in art way used a number of different supreme court has to factor in a multi factor test and if we look at that test i believe that removal unquestionably context of immigration proceedings are what you are but this is a natural result of all the other cases that deal with separate proceedings in general and i'm not the first person to come up with this argument either there's plenty of literature that we've cited not re it was denied was because it was a simple i don't have the authority and b i agree correct correct and we believe that the statute is very clear what the statute  may be clear but the seventh circuit did a terrific opinion as i said and actually that the clarity of the statute goes hand in hand with that seven circuit opinion right and the seventh circuit to agree with our argument on day three and send it back to the immigration judge for that determination the immigration judge would have a short discrete task of deciding whether or not that waiver is appropriate if she decides  discretion that it's not appropriate then the u v s option for our client is out the window but we still have the argument on the proportionality of whether he should be removed at all at any point so it may be that even though we we do that narrow ruling we end up back here at the end of the day so yes that is a way of resolving that this matter now but i would ask the court to address the proportionality arguments well so we don't have and the problem that i see with with that argument and the problem and i have with the seventh circuit decision is that in two thousand the congress created a program as part of the victims of trafficking and protection act of two thousand and they at that stage the authority to grant of program was turned over to the department of homeland security ok and we section d fourteen gave the secretary of homeland mr sunday was there i think was there after started the i j they stay stayed the action to give him a chance to get his you visa so it seems to me that you know  at worst we have an ambiguity here in the statutes as to the exclusive authority ross would you agree with that i would not your honor no ambiguity i would say that there's i think in order to get an implicit repeal we need more than just here's an argument for or against you need to show actual congressional intent to show that and without that i don't think it's just a question of an agency interpretation of an ambiguous statute when there is no congressional intent to show there's an implicit repeal remember also that this is a provision that grants the authority to the attorney general ok and they made some changes when the u v program was established and others portions of the statue were changed from attorney general to department of homeland security this remain the same they didn't  not receive an answer ok all right but they're in page eighty one seventy four of the record d h us itself was responding with respect to d three and the fourteen so they also acknowledged that the three applies in the soko just seems or odd to me that congress would have allowed a system a statutory scheme with the attorney general would get a second bite of the apple when an agency already made the very same they already had the very same issue in front of them in a decided the question your honor i would refer the court to actually section d three b of the same statute of homeland security so the fact that there are two avenues to obtain a waiver of an immense ability is not so strange now i d three as it would be a would be a temporary waiver when  what you're saying if you want to go to the attorneys to move or override the agency it just seems like a statutory scheme that congress would not have been and why i don't think it's so much as the immigration  statute could be a lot more clear but it's not the only place where they gave two different grants of authority and the department of homeland security always has the ability to deny that  my name is sandro of her on behalf of the respondent the attorney general read a lynch can you hear me we can now we're here because sunday has an extensive criminal record one of his conviction that application and its associated waivers and issued him two written decisions one of the u v said and one of the waivers u s c i s explained that sunday had failed to demonstrate that his positive equities outweighed his negative equities specifically his lengthy criminal history sunday was not happy with that discretionary decision has requests of the tourney general specifically through the immigration judge pretty good argument about the equities here wells has had a country across these years and he overslept or something well but he did have a hearing he had the chance to present his equities and u s his positive and negative equities and ultimately concluded that he did not merit and what he's asking for is to completely overrule that decision he's asking that the immigration judge over hundred plus years of supreme court precedent because he didn't like the discretionary decision by us c i s he was afforded the full process that was available to have seemed in the event every other criteri applies here and i would note the seventh circuit spends a considerable portion of their time on what it believes to be a problem in the process but the process here worked out exactly how it's supposed correct there's no specific language that says the attorney general does not however there is language that says the secretary of homeland security has exclusive jurisdiction over the visa we know that that's not an issue right but there's no explicit he was denied the u visa because he couldn't establish that he was admissible or that his inadmissibility was waived this waiver is part of the u visa the decisions were handed down on the same day by the case where the immigration judge had adjudicated everything else and more important his record is his whole set of equities was before us yes and no one is disputing that they are incapable of adjudicating this process there is no suggestion that they did something procedurally wrong so let's and i understand we all understand the legal department said to us yesterday you know you know we think we equities or i was sunday here well no that's what's wrong with that result but that's not what congress intended because they put the exclusively in the hands of us yes how do you get to that point that i mean you know how do you get to the point that in standing here before us to do we do our deference the justice department's interpretation of business we argue that yes you do and i would just simply point out that what we could see and hear and we could debate and we could create what we think is a better process but that's not our role our role is to interpret what congress has set forth and it is our opinion that congress placed exclusive jurisdiction of the u v said the hands of the secretary of homeland security  clear that is what the board held if there is a question of ambiguity it would be best to send it back to the board to clarify it it seems to me the bird has the i ask you these questions are i'm a little bit of a loss here in trying to figure out how we interpret statutes anymore because a decision is king versus burwell the chief justice supreme court said that where there is and the ambiguity you have to look at context and it seems to me that there's an ambiguity here and maybe you know we'd be looking at the context in which the fourteen was transferred to the h s and if that's the case that might support your position absolutely your honor in the context of this case it's clear as the fifth circuit laid out and try to  s to make the whole system or has to have exclusive jurisdiction over both the visa and the waiver because otherwise it creates piecemeal litigation where the case would if we're going to talk contacts would more likely the case would just be continued see if the fisa would be granted by us c i s if it's denied then the immigration judge would the application for a waiver under two three should it be positive it would be sent back to us c i s to see whether they agree because they also have the authority to revoke a waiver mr all a very let me ask you just one question about abortion al gore's ok which is a separate argument here yes and  i'll can you don't we have to read we have to read the thinking of supreme court which is so often very difficult for us to do your argument might be your argument is i think we make is that the supreme court didn't actually hold that it was a punishment and secondly if the supreme court were to do so they would need to do so on a quickly we're talking a hundred plus years of apply all of the criminal protections to immigration proceedings what petitioners asking for is a radical departure from anything that this court and the supreme court have ever done and we would simply say that without clear guidance from the supreme court there's no reason to say your answer is a good answer but you don't think believe us kentucky changed the jurisprudential question that we have front of us no and i would refer thank you your honor as to exclusivity there is no ambiguity in the statute although there are quite a few ambiguit request and they said so in the regulations d three d also shows different avenues so the fact that you can have different avenues that shows that there is no  element mixed results in the legislative record objective intent we have reaction here the punishment is defined by the conviction in excess there is no discretionary relief and as a permanent tree that smacks of retribution and deterrence and on your facts test which alone can satisfy the test if this case doesn't do it i don't know of any case that