ability from the attorney general under section eleven eighty two d three because the plain language of that provision grants the if that the attorney general the authority to grant such a waiver that should be the end of the story in this case  this is not a case for chevron deference to text of the regular the text of the rest of the statutory scheme is an ambiguous if we start with the statutory scheme before thinking about the case for chevron deference the only way that the second provision at issue here paragraph d fourteen could possibly negate or rob the first provision d three of its plain meaning would be if congress had a nap today an implied repeal but there's nothing about the text or legislative history of paragraph of the fourteen that suggests that congress enacted an implied repeal there's nothing about the tax or legislative history of the  ambiguity in the statute there's no room for chevron deference that's a kind of chevron step one problem and then thinking more holistically there's a chevron essentially a chevron a step zero problem absent an indication that congress intended to delegate gap filling authority in this instance to the board there's no room for the board to fill in the gaps in the statute and then even even broader problems stop i don't think it's quite that simple i think another problem here beyond the chevron step zero problem is that what the board has done in con is attempts to apply and interpret regulations from another agency and there's no room for deference chevron our any kind of deference when the boers purporting to interpret the regulations from another agency essentially what we have here is two statutes that can be read harmoniously in order for the second statute to in any way affect the impact of the first statute there needs to be an implied repeal the supreme court has said time and again that implied repeal requires either one of two conditions it requires either a clear and manifest congressional intent or two statutes that truly stand in irreconcilable conflict but neither condition exists here on congressional intent we talked about the two thousand natch meant of the fourteen but there's also nothing about the text or legislative history of the two thousand and six amendment when congress moved the attorney general's deep into fourteen power to the secretary of homeland security and there's all this is an also not a case of irreconcilable conflict the two statutes can co exist and provide dual tracks to a waiver determination and if two statutes are capable of coke systems the supreme court has explained that it's the job of this court to give effect to both statutes if possible although there are certainly some overlap between of the d three power and the d fourteen power redundancies across statutes or not at all unusual events of both statutes can be given force that they both have to be regarded as effective this is if anything an unusual and unusual case in which the plain text of the statute of the three happens to point in the same direction history structure and purpose of the statute the history of this statutory scheme if anything only confirms the d fourteen power was intended as a context specific an enhancement and not a replacement for the d three power the text of d three what we might call the catchall or the blanket provision dates forbade him to the original immigration act of one nine hundred fifty two since then congress has repeatedly amended section eleven eighty two in the immigration code while leaving at the blanket provision untouched and then in two thousand when congress added d fourteen into the statutory scheme the trend in statutory drafting at the time was to create context specific enhanced mintz in the context of waiver provisions in the immigration code and then in two thousand and six when congress transferred the d fourteen power congress only further differentiated between the two statutes when it gave the de fourteen power to the secretary of homeland security and on that point i think i important to note on the question of overlap and redundancy each statute does reach some distinct cases the de fourteen power is broader than the d three power in certain respects and the d three power as broader than the d fourteen power and certain respects if mr meridor had gone before the immigration judge and said i'd like i'm an unmissable i'd like a waiver and admissibility i think there's no question that there's a should be no question that the immigration judge would have that authority but then if mr meridor said i'd like the waiver because i'm applying for your visa the government's position is that the immigration judge would suddenly lose the authority to grant the waiver that the three power is broader in certain i think if anything the board of immigration and culture honor exceeded its own authority under the immigration regulations and reversing the immigration judge judge slaven will respect immigration judge in florida issued a remarkably thorough twenty two page opinion analyzing mr meridor years family ties his criminal history as educational background and his connections to his family applying there's no question that the immigration judge applied the correct three factor standard in that the immigration judge analyzed every factor in substantial detail the problem however is that the board's own authority is confined by its regulations the immigration regulations prohibit the board from engaging in to novo review a factual incredibility to terminations in the course of deciding in an appeal and in neighboring regulation prohibits the board from engaging in fact finding in the course of deciding an appeal that's exactly what the board did in this determination a determination about future recidivism under that this you case is a factual finding the immigration judge considered all the factors heard testimony from mr meridor and his family over multiple days and determined that mr was risk of harm from remaining in the united states which low the board however said with pretty bare bones reasoning simply stated that it was not persuaded by the immigration judges determination that the risk of  and the board that the board stated that the risk of harm the mr maritz risk of harm was high without providing any any reason let alone skeletal reasoning of how it reached that determination it's true that at one point in the board's opinion the board the board does use the term outweighed or re weighed but as you case in the munis case stand for the proposition that the board cannot couch a gene novo review a factual circuits recent up subsequent opinion in based sanchez on the question of l d g and brand x i would urge this court to base its holding in this case on the plain language of paragraph d three to prevent the board from engaging in the kind of brand x over ruling that we saw in the seventh circuit after the seventh circuit issued its opinion in l t g and held exactly as mr meridor is urging in this case the board of immigration appeals porting to exercise its brain dumps authority over ruled attempted to overrule d g and announced that had would not abide by that decision that's remarkable but what's more remarkable still as that the board said we will not follow that decision even in the seventh circuit although l t g had based its holding on the plain language of the statute in order to foreclose the board from from doing this in this circuit i would urge the court to jewish it plain language holding my i think your honor may it please the court rachael brown ink or the respondent this case concerns the interaction between two sections of the eleven eighty two d three eight two pertaining to general waivers of in a miss ability available to nonimmigrant seeking temporary admission and subsection d fourteen which pertains to waivers specific to aliens petitioning for u visa status the court does need does not need to interpret the fourteen as an implied repeal of the earlier  subsection in order to find that that section confines to us c i s the sole authority over waivers ific to people petitioning for your visa status in this case the board  in this case and in its published decision matter of con the board recently determined that the legislative intent but time behind the interplay of these provisions was unclear certain waivers that's correct but you can't you would have to ignore the plain language then of de fourteen what what the board is simply saying is the way these two provisions interact it's unclear what  delegated to the immigration judge in this specific context and what it did was it looked not just at justice authority over you visa petitions generally but also in the past prior to  coming into being immigration judges generally only had jurisdiction over waivers of temporary admission in very specific circumstances and those were after an individual had applied prior to coming to the united states or at a port of  and had been denied the waiver of an admissibility then they could be paroled for a limited purpose of the immigration judge determining whether they should should be granted a waiver in that context i don't think it's that it hasn't amended it as puir u v says but it created the separate provision specific to you visas to fourteen in which it's delegated to d h s the authority over that we're just talking about two different two very different contexts of the waiver of in a bit and disability we don't deny that eleven eighty two d three eight two gives the attorney general general authority to decide certain which applications for temporary admission will be reviewed by an immigration judge but in this context where you have a separate statutory scheme for you vsa petition that belongs to d h s which is delegated as authority to us c i s and because the regulations make that waiver of an invisibility part of the evidentiary submission to d h s it's reasonable to interpret that whole process as belonging to d h us it would frustrate the regulatory scheme to have an i j deciding separately and concurrently and in fact in this case it did because we got to the end of the because it simply doesn't work in this case the judge decided that she would grant the waiver even a miss ability and then conceded that she had to order petitioner removed because she didn't have authority over the ultimate determination of whether he was eligible for you visa and his but for one thing you're on our position is that that's not what the statute says and the statute says that the h s shall determine if there is a ground of inadmissibility and then may grant a waiver in its exercise of discretion of having if you give the judge that suggests that an i j is decision would then overrule that of u s c s there's no statutory regulatory mechanism that suggests that that that's how this operates and i think waivers of an invisibility for temporary admission and those that delegation has been very specific and limited to a narrow set of circumstances which we outline in our brief and the fact that the governing relation governing regulations pertaining to you visas makes clear that the waiver of admissibility and admissibility is part of that overall evidentiary process the department of homeland security and there's simply no mechanism within the statute or regulations that tell you what to do when those two when those two agencies would come into conflict over this question and i think that's what the board was looking at when it when it construed the statute and i just want to also point out the court may not get tangled up in this issue of it doesn't want to because ultimately the boy if you if you feel that the that the board should not be deferred to in terms of who has this is already the board ultimately determined that mr meridor did not merit a waiver as a matter of discretion and that decision is not reviewable neither are the subsequent decisions of s that determined that he's not eligible for the us or waiver those are confined to the agency's discretion whether we're talking about the department of homeland security or the attorney general and that's under discretion it did not find additional facts it looked at the facts that the judge relied on simply balance them differently and does determined that the extraordinary length of his criminal activity the violent and severe nature of that activity was just not outweighed by the positive factors that he presented us cia has reached virtually the same conclusion in its final determination as well those are fact based determinations discretionary determinations that this court does have jurisdiction to review it would in fact be issuing merely advisory opinion over the you know the issues presented in a matter of con so i think that's an accurate yes your honor i think what the board the board looked at all of the things that the judge did the judge herself acknowledged the extraordinary nature of the crimes that he committed over the course of his years here the board just took a different view of of how it weighed those factors and this court can't really weigh the factors in the manner that mr meridor would prefer i don't i think the board just wade that finding differently i mean the board didn't substitute anything and say oh no he has done such and doesn't touch instead the board simply said that wasn't enough to overcome his preceding years of behavior the question in this case as one of the interplay between two statutes i think that's exactly right questions between questions about the interplay between two federal statute or very much so questions that federal courts should resolve extends what the supreme court said in the j m case and in the palm wonderful case applying the traditional canons of construction as the court did in jail and palm wonderful the question before the court is whether this second statute that exists in the immigration code paragraph d fourteen somehow impacts the import of the first previously enacted statute applying the traditional canons the answer to that question is no there's no we don't have question intent let alone clear and manifest congressional intent and we don't have true irreconcilable conflict we haven't talked about today the d o j regulations that are important in this case the d o j regulations that judge easterbrook recently looked at in the bay of sanchez case if i understand my friend's argument correctly the government is not contesting that the attorney general has broad authority under paragraph d three to grant waivers of inadmissibility in a broad variety of context to footnote three on page fourteen of a reply brief which provides which list of regulations that allow immigration the immigration judge to grant specifically a d three waiver and essentially any context any procedural context in which the immigration judge has a proceeding and the other regulations that think they are on the question before the  regulation specifically provides that the that immigration judges shall act as the attorney general's delegates and the neighboring provision which essentially overlooked by both the board of immigration appeals and the government specifically empowers immigration judges to take any action that is necessary and the disposition of the cases that come before them these cases that these two regulations as the seventh circuit held in bay of sanchez recognize that immigration judges enjoy broad authority as the attorney general's delegates at the end of the day however this is a case about statutory interpretation there's nothing about paragraph d fourteen that suggests that it was intended to divest the attorney general of his d three power to grant waivers of any mis abilit brand x issue to do show on the based on the plain language of paragraph d thr