special immigrant juvenile status because the underlying juvenile court order was insufficiently permanent for the purpose of the agency this decision is arbitrary capricious for two primary reasons first off this permanency requirement unmoored from the statute and is an extra statutory extra regulatory ultra virus requirement and for that reason the decision is ultra vires of the a p a and arbitrary capricious the second reason is because even if permits is allowed by congress this order is permanent for immigration purposes and ignoring important facts the agency erred under the deferential standard the e p a and the decisions are drink precious i do want to point out one important thing  this court at the as a threshold issue we are not challenging a final order of who here this is not a typical p f our case that this court sees a lot of and therefore the standards of review are not found in eight u s c twelve fifty two that as your owners kno are extremely deferential to the agency rather this is this case arose in a federal district court to challenge a denial of a benefit under the ministry procedure act and so the entire case below is a question of law that this court reviews the novo and essentially looks at the record not there's also an alternative which was that in order for the status to be granted the agency has to exercise discretion which requires a certain factual basis for any underlying stake  of the agency also determine the firm of the court that there are insufficient facts produce or in order for the agency to exercise its discretion and that's a holding separate and apart own policy guidance on what it needs to look at to to to exercise consent and i will say here it is a legal determination i do not think it's a discretion or determination here because they said there's not enough facts for us to even exercise consent and so i do think it's a legal determination so i can't point to anything in the statute that tells you what guys are consent i can't point to anything in the regulations so you guys are consent the only document out there the juvenile court looked at it can consider the entire record comprising the documents that were sent in with the application for special immigrant juvenile juvenile court order the first order clearly said it was a temporary emergency order there had been no development of the record at that point there'd been no effort to contact the mother i mean it was a very incomplete record wouldn't you agree at that point you're not yes but i think that's the typical record record for that be an accident of circumstance it never the less is what we're left with isn't it that's right your honor but what was in from the agency at the time they had the opportunity to exercise consent or not were additional affidavits that filled in the details and factual findings to satisfy each of the necessary facts with the basis of i mean it may be perfectly fine for state court purposes but that does not translate into meeting the requirements for federal immigration and your honor i don't think the agency is an appellate body that overviews the state you've in a court and let me just read from their own policy guidance u s c s relies on the expertise of the juvenile court in making the child welfare is suggesting that state quarter is invalid for any reason the question is what do those findings mean under the immigration law critic wouldn't you agree that without the number proton quarter that first order would be insufficient that's what saves you tenchi you two you're arguing saved your situation because again it was an emergency order normally that situation occurs when your child is in actual distress you know to some true emergency it look this judge anyway as though the only emergency was the time i and i'm curious how when the child first go into the actual custody of the father about a year and a half before the or he had eighteen months why didn't they do it sooner well your honor you know after she turned eighteen nevertheless if the after she turned eighteen your honor the the agency only requires findings in an order that are contemplated to last until the child turns eighteen and congress has  age doesn't matter here we want to protect these children we do everything we can we look at that eight u s c twelve thirty two and the significant amendments that were done in two thousand and eight under the trafficking protection victims act we see that unlike law they set a date a time line for the agency to grant an s i j application one hundred eighty days they say institute regulations notice and comment rule making and policies that take into account the unique aspects of dealing with unaccompan that do you believe that the juvenile court ordered by itself without the no photo one of the not i think not proton helps our case significantly i think that there was sufficient findings in the original order the agency said go get additional what i'd characterize as one of the primary issues here setting aside the consent issue permanency is not required but congress by the agency or by their own policy guidance and i think if we look at first off if we look at this court's precedent from only two years ago to a very similar situation and the lynch case we look at this term that congress put out there here it's placed under the custody of an individual now and the word was adoption placed on the custody of an individual in this context clearly cites to state domestic relations law and if congress wants to limit that to permanent orders it has to have unmistakably clear intent and the government has even argued that it has satisfied that standard and so unfortunate result of timing your honor our derivative of the c i s is claim that it has to be permanent and i just don't think there's anything in the statute that requires permanently no custody order is truly permanent they're always subject to some change i think maybe the better where he is an adequate order indicating the custody of status of the child in the problem is given the nature of what temporary emergency those two words are almost words of art they do mean they're not meant to be the final word because there's an emergency situation has to be immediately addressed by the court the court to dressing it now holding the situation but it could very easily change with additional information and  i agree with that your honor but that decision's been made we're not going back debating what this means under north carolina law we are saying looking at the face of this order doesn't make the necessary findings for a subject and between the two erst not protons and the order and i think the motion to reopen consider is not the trunk order instils as well we see these additional findings we still don't think it's official because it's not permanent that's the basis of the final agency action here permanency and permanency is not allowed by congress then this court should remain and all the way back to the agency for a full consideration of the of the final because i do think the permanent seat requirement infect their consent analysis because they're looking for permanent findings and a record underlying that that would allow her to make of the judge judge man permanent find and these findings are permit because help but i also think that the agency was wrong sufficient information in order for the agency to exercise its form judgment as to whether or not it should grant consent and the records pretty sparse on the information that was tendered for that that was actually considered by the state court of making any of its determinations and i think that last clause your honor is where i guess we disagree the agency's own guidance says that it can consider the stuff submitted to the state court judge but also additional evidence and we did send them to you a very lengthy affidavit which are part of the record for the s i j application they want president of the state juvenile court judge for whatever strategic by saying strategic reason is perhaps the family court lawyer did not want to put all of this very troubling information that's in these affidavits in front of the public record in state court and that was unfortunate  but nevertheless it was in front of the agency whose decision were challenging and they are allowed to consider under their own policy guidance again a pointer to zero six in the record where talks about how they're how the agency will defer to state you know court judges and it doesn't require overly detailed information and they can consider quote other supporting evidence in the record for a subject and for those reasons we would ask that you reverse the district court thank you very much and have sometimes or from a bottle your name correct you did thank you on  permanence is not a requirement of the statute but they noted to her that the nature of some of the findings that go into the order should be of a permanent nature this is a benefit that's intended to give children a permanent status in the united states and there's a number of ways in which a more final maybe a final is a better word than permanent determination on these issues that need to be in the state court order originally a classification was intended for allianz who are eligible for a long term foster care and long term foster care has a particular meaning under state law that means it's a final determination that the child is going to remaining in cost of care until they reach the age of eighteen so the determination that there is no longer any opportunity are going to be in any efforts made to reunite the child with their family or find them any sort of other placement now a lot of states have moved away from this as a policy matter intrade implication is to try and really nice children with their families and so in two thousand and eight congress amended the statute in the trafficking victims protection act and replaced this requirement of a finding that reunified that the child be eligible for a long term foster care with be not viable as a requirement that you have more than an emergency temporary order so essentially as we lead on our brief north carolina like a lot of states has to jurisdictional provisions section two which is a jurisdictional pro custody hearing it doesn't have to provide notice to both parents who would have an interest or parent or rights would be affected by determination it's just a jurisdictional provision that allows the court to essentially place the juvenile in protective custody for a short time until the court can hold an actual custody hearing and that's exactly what the juvenile family court did here it's only temporary emergency jurisdiction the order explicitly says that it's setting a hearing for five days later and that's the date when the cut it's rather unusual yes your honor i think this this provision under state law is probably more often aimed at situations where both parents are located in the state or in the united states but again this is a situation in which the federal government  agency defers to state law determinations and so north carolina has made a choice that in order to make an actual cause you determination you need to set the hearing for some time in the future and and make an attempt at least cried notice and so the agency deferred to this determin child into the court and says there's an emergency will place the child into the custody temporary custody of her father until we can figure this out provide notice your posting counsel has argued that after this happened after the temporary order was obtained there were these two affidavits one from the child one from the father submitted to your agency why would that not be sufficient information yes your honor so again this goes to the consent requirement under the statute  which the agency reasonably interprets to require that this is this cut there was some reasonable factual basis for the state court to make these findings they're not going to they want to accept as to court order that appears not genuinely aimed at trying to help  isn't that one of the issues here the kind it was so close to the eighteen year eighteenth birthday concerned that the real effort to get custody stablished was to get the immigration status yes your honor but the the agency is very willing to look at evidence beyond what's in the court's order the juvenile court's order they ask really that there's some reasonable factual basis for the court's findings and as opposing counsel raise the agencies willing to look beyond what order i'm not sure the answer to that your honor but again there's no evidence that these affidavits were ever presented to the juvenile court at any time the affidavits don't set out that there was testimony or certain and they asked they notified miss ray is that there were several problems with the court order that had been issued and so gave her an opportunity to present before they even made a decision any additional evidence that she might have to support the order to show that the order had a reasonable factual basis and rather than providing additional evidence showing what was before the juvenile court she said instead that to the extent required findings were missing from that order that the agency should infor of them now the agency again is going to defer to the state court order the agency can't read in factual findings to the juvenile courts or the juvenile court in many cases have been submitted to the age  in response to that she submitted the affidavits but they were dated after that the family court proceedings so your your basis for saying there was no arbitrary basis upon which the agency exercised its decision not to consume it was that there was no proof in the record that these affidavits or any other evidence was before the juvenile there's there's really three statutory requirements that this raise feels fails to me the first is the requirement under the statute that you have a valid custody order from a state court that has jurisdiction to make a custody determination she group of aliens in the way congress invision it working is that if a child had a valid custody order from a juvenile court with jurisdiction to issue it was placing them in custody to help them avoid abuse abandonment or neglect they could file with the agency states becoming l p r and get a green card so it's a serious and permanent benefit the congress has provided but it's not an unlimited one so there are some annual statutory caps on the number of individuals with s i j classification become petition they genuinely need the statutory eligibility requirements congress set out for that someone has to meet before it can be approved so that this classification and the resulting path to permanent residence the united states are going to the individual you have some time for just a couple of points one i'll just point out when you asked about the government about whether permits your requirements valid there's no reference to a statute no reference to regulation instead it was straight to statutory history that's not how this court looks for congressional intent we start with the text structure and then if we have to we get to history and so i would argue that the answer that question was no there's no statutory requirement for permanen second the government followed that up by saying well we reasonably interpret it here for the findings we don't require a permanent order we require permanent findings and i just want to read you what the government's only interpretation of how final permanent c urch how final th findings have to be u s a s generally requires that a court order be valid at the time filing it must determine the court intends that a child will not reunify with at least one parent until the child reaches the age of majority that's the level of parent or parents remains in effect until the child ages out the juvenile courts jurisdiction those findings do not have to mean that at age twenty five you know the child won't reunify with the parent or have some sort of reckoning right only have to be until the child turns eighteen here four days four days there is no as judge brinkema brought up there's no reasonable belief that they were going to reunify in four days and so even under the go government's policy guidance i would say that we no immigration officer can compel her to communicate with an abandoning or abusive parent so there is a limit on notification in these cases the agency cannot do indirectly what it cannot do directly and trying to require my client notice something to her abandoning the abusive mother through requiring that from state court order you let's check now i think that's a bit of an overstatement that the mother of the mother has some due process right in the proceeding and should be aware that they are going on and i understand as everyone that judge that that deeply troubled the district court and i would just say that it's stablished law that a foreign national abroad due process rights are what congress says they are they do not derive from the constitution and here congress asserted a abusive parent or abandoning parent does not have a due process right to communicate with their child it is you cannot compel that child communicate with a just point to that statute again it goes the overall intent to expand protections for this very vulnerable population finally i would just say with the consent and i do want to clear something up for you judge agee that the temporary order came out they issue was there finally to see action here just refuses arbitrarily to consider that under state farm if you don't review an important fact or factor that's an arbitrary capricious decision and for that reason we would argue that the