investor was dismissed without prejudice and was not in the notice of appeal right and that is that person appealing today the one that was in that one that one we is not appealing to was the remaining ones are appealing one that one is appealing i believe that that investor does have a tending  appealing here i mean you agree that the one who was dismissed without prejudice is not correct but so the issue involves the deference to be given to the decision when a expertise on the subject matter of the regulation we would suggest that even before college or under our deference should not be given to a precedent decision which is not a regulation in and of itself that risk and the other is whether this constitutes quote eight hundred dollars note convertible debt or any other that arrangement we believe that the decision itself seemed to focus on the at risk issue but whether it's the at risk issue or the whether it's any other debt arrangement but we believe that very clearly it would not it is that risk under any regulatory definition and it is not any other debt arrangement under is the president decision that's the only attempt the agency is made to to define it but the facts in matter of izumi have no relevance whatsoever to the facts in this case and there's actually been no no regulatory definition and you will note that in the decision itself there's no attempt to say what those at risk mean or what does any other debt arrangement me and in a matter of a zoomie you had a situation where there was a guaranteed obligation to repay and if the repayment was made the investor didn't even have to complete the investment there was a date certain there was a certain amount then there are the investor has a one time option to request liquidation of his investment and that's no way near what matter because i'm yours so we suggest that under kaiser the st step of the analysis has to be under under any regulatory construction what is the definition of at risk is it ambiguous if it's not ambiguous and the court makes a decision what is the definition of any other data rate and it doesn't stand by itself does not it doesn't say any debt rating it give specific examples under is just i'm generous with the any other debt arrangement has to be similar in kind to denote body or the convertible bet so in this case we would suggest that under any definition it this would not be considered anything but an at risk investment the provision of the regulation as being a for real definition of what that means and so that the government would have to establish you know who has the burden of proof that it wasn't at risk is there something more to it the no there is nothing in your argument just that it's unreasonable to conclude that this wasn't a risk total so all the other stuff about kaiser and everything is really quite irrelevant the only question is is a reasonable to say that this money was not at risk i believe that's correct is it reasonable that and is reasonable so the money's not at risk and is it reasonable to say that this is qualifies as any other that arrangement or equity and we cited this in the brief and thirteen of the thirteen factors in this particular case would point to this being equity and not that so the i  think that there's also it's relevant that the that the kaiser does talk about the fact that if you're going to give any difference whatsoever to the agency then the issue is does the agency bring any expertise to the subject matter and it is not only us saying that the agency brings no expertise to us immigration service has no expertise on what is a debt arrangement as you know expertise on what's an investment at risk it's not only us saying that it's the it's the doing of the office of inspector general of the department of homeland security and we cited this in our brief and if i if i could indulge the court just for seconds i think it's important for you ind still want to focus on the question i was asking before as i read the agency's opinions it's all about whether this is at risk or not whether it's debt or not as if that were something different that risk the agency decision itself only the capital at risk correct they conclude that the capital was not at risk correct i think what we have here is the government's brief moments brief really not relevant  the agency only said that this does not qualify as an act risk investor but what i was in and what i was getting at is the issue of agency expertise to the extent that the court believes that this is there's even an issue here of whether this is an at risk investment we would suggest this is about as risky an investment as one could make you know the investors are you know have some potential return they're going to be a part owner of a business that may make a lot of money but they're investing as the documents indicate before there's a significant need for debt financing and they invested before there was any bank commitment there was a need for government permits and they invested before they were government permits the the the the option is based on the assumption that there's a valuable cash and available cash is is not something that says is it profitable or not but how much cash on hand is there of it as to civic date at some unknown date in the future and we would certainly suggest that you know under any possible definition this is  an investment that is at risk the i think it's important to give you a quick location both from the office of inspector general of the department of homeland security and the u s immigration asking for a sort of deference to instant denial in this matter this is if you look at the district where opinion really straightforward application of this denial i think is just wrong and you were getting at it starts off with the at risk analysis question is whether it's reasonable to conclude that this was not a risk right well i'm not sure i would preclude that because i think as your hours prior question in that portion of your humans getting here is that the here and the just be clear make sure i understand we both of you and i both understand your opponent's position to be that they are at risk because they don't get their money back unless there's positive cash flow at the moment they want to back in the sin so if any company fails and no one gets anything that's come out in the sense of if any company fails because companies don't necessarily fail just because they don't have positive cash flow or are there and companies that do have positive cash flow sometimes fail so that's not the same thing they are they are the whole point of their argument is that the fact that it's contingent on cash flow makes that risk is that is that is their argument i don't know you may disagree with the argument but that's her argument is that i think that's the crux of their argument to the point that there is risk involved but there is no risk if for the purpose of generating cap on on that guaranteed and the overturn it says even if the petitioner is obligated to make that belong payment still cannot be said to be at risk because it is guaranteed to be return program has never been to create basically debt holding cell for wealthy individuals to obtain citizenship as long as they can put their money into a company for five years statue has been that investment is not about dropping your money and holding it into a company for five years they they took investment to be equity stakeholders who would be interested in both the operation and helping the company so why isn't a investor an investor who doesn't get his money back unless there's a positive cash flow interested in helping the company well i think if they have contractual provisions and they're with that are much more akin to the if the company has to b that's the key contractual provision that they've cited why doesn't the contingency of positive cash flow constitute risk what's the answer to that i think that's a takes it's not the risk of actually generating capital or saying well normally you don't get your stock back you don't get your stock back if the company fails i don't have what happens but a company with not positive cash flow in any particular year doesn't necessarily fail right and if you keep your understand that i think that the difference here is that if they're structured in this way then they're not meeting the purpose that congress had in mind when this program and that the agency had in mind when they were putting forward to a full six since ninety nine essentially responding to a whole host of morning exotic operating agreements and agreements that were being structured with so called magic words to basically have easy to be suggesting that th with that i'm not sure what that means that that didn't sound all that exotic but anyway is that correlate with absence of risk i think that devil ranges do correlate to a certain degree list the laundry list to get some things that are very clear cut forms of debt bind nose promise or notice or and then it goes from that list to also the agency's wisdom they know that there will be other forms of more exotic guarantee right exactly but there were other there were other things including what appears to be a ponzi scheme because in izumi there they say well if they couldn't get their money back one way they would could take more loans from new investors and pay the money that i certainly agree that the government's position is the position assuming that the documents did not mention available cash flow that's a whole different case and that's not the case we have in addition to the fact that available cash flow in itself makes the investment quote at risk if we add various things to it the date that it can be exercised is uncertain it can only be exercised on one date whenever that is and it's not as excluding the three million five hundred thousand dollars that was invested by e b five investors if that's not it risk i have no idea what it is i think it's also important to to look at what the impact would be if somehow  this court is stating in the immigration services stating that this is a debt arrangement and not at risk for all other purposes for all other government agencies this is clearly equity for tax purposes clearly equity the other creditors would certainly be very surprised to learn that all of these people are creditors in line with them so it's not just looking at this in isolation this has impact on every other way that this would be treated if it's treated as a debt and not at risk do the investors still have a right to vote which is provided to them do they still have a percentage of the profits which is provided to