all right our third case for this morning is ruderman against attorney general sessions country where he no longer has any family where he was previously tortured as a child and where enough torah tarion regimes watched and encouraged as the jewish population has been decimated over the last twenty five years but as mr rubin has repeatedly argued the government lacks authority to remove him unless section two twelve a to b which requires sentences plural to confinement can be interpreted contrary to its plain text to require just one sentence to confine no one not the i j a not the b s a and not even the government before this court has defended this reading of statute instead let me ask you about that reading of the statute the dictionary act says that the singular includes the plural and the plural includes the singular that's one u to address the dictionary and vi and when read it it's totality shows that when congress chose to i would like you to address the dictionary act so the question is does the dictionary act apply here or is there some reason to think that kind i think leave the answer to that is that unless the context otherwise requires is probably an important qualification and here it talks about aggregate sentences to confinement not an aggregate confinement of five years whether through one sentence added to as many zeros sentences one might wish which was it will leave you with five years so ho then of course you have to discuss what the context clause covers and the supreme court held an inmate's of some penal institution that it covers only the linguistic context and not the functional that's why i'm asking you to address the dictionary it's got real language it and it actually talks about singulars and plurals and it's got a context clause and the context was we got real interpretations by the supreme court and can't just assume that if there is a world in the statute that excludes the possibility that it covers a single one has to work through the arguments and you also has to consider whether the fact that the agency itself did not rely on the dictionary act makes any difference because the agency did not breathe a word which is why i'm bailing you out a little bit about this step yes your honor i would also point to the term aggregate in front of sentences to confinement if sentences means the singular and the plural then there's no purpose for the term aggregate in the statute it would be completely superfluous and that would be a linguistic argument i believe so in this case i mean you've offered a number of different possible grounds for getting mr ruderman another look one of the arguments that the board seems to have  relied on is the question whether and certainly your opponent the attorney general is saying that mr ruderman didn't preserve this point i take it he does raise it in his notice of appeal from the immigration judge he does appeals if you had across a brief and then a counsel brief would disregard the pro se brief is that how it works that the b s a that's not my understanding your honor my understanding of forty of the i is that the b a allows multiple  that he had the two convictions so he and why wouldn't that even if the board can consider both briefs within that concession then trump whatever he had said in his own filing so  was a tension between these two issues at the veriest and given that the amount in this this court's holding in juarez people there are three if i recall correctly that all that is required is raising it in the notice of appeal  the the standard the basic contours of a claim whereas mr ruderman is notice of appeal which is probably the clearest place to look says quote a single conviction of five years does not track the plural specificity and clarity of section two twelve  he's very very clear that there's not a kind of reading the tea leaves that's required in order to get there and so it seems that you're at the very least to be a was alerted to this and has its own mechanisms for striking his brief or for clarifying what the position was  of self did not have an opportunity to meet with the program the provisional council that was appointed they never spoke they corresponded only by letter he did not have an opportunity were to review the briefs before it was filed and so it was it would looking at the immigration judges opinion the immigration judge did not arise that the extreme chip standard that ordinarily applies is not the standard for the l it so i take it your argument is just that the immigration judges discretionary call took place inside the wrong boundaries that's a correction of the law you know what what which law is stablished the rules for that exercise of discretion that's correct and even if we were to even if the board were to take another look the outcome could be the same even under the law to standards it's important we use the term couldn't because i would agree with you there the  outcome certainly could be the same but i don't think that we can say it would be the same there are a number of differences between the general for his vision and the lautenberg provision for example the as you note the level of scrutiny that  that is required the general provision requires an extreme hardship for the lautenberg standard only requires humanitarian purposes to assure family unity or in the public interest which is obviously a much lower standard than extreme hardship additionally a few other factors lautenberg parolees don't count don't do not count against immigration caps and so if the discretion were to be exercised on the proper standard there's good reasoning to suggest that that that the very board accepted that you know that they you know that it seems that there was clearly an error in not applying the right standard for an elaborate amendment that it could be waived which for family unity matches for extreme hardship that seems clear but if the attorney general doesn't have to exercise it's just right his discretion you know if he could waive it and they've said well we wouldn't waive it because the privacy of the the existence of the discretion to do so that determination might have been wrong i'm having trouble seeing why why the discretion would be exercise differently given the stated reason for the refusal and that's a good question and i think the answer is we don't know exactly how this would come out i think in terms of whether the immigration judge ties them together the immigration judge says the court generally may not accept discretion in granting a waiver first bonded who's committed a violent or dangerous crime unless the respondent shows the presence of extraordinary circumstances such as showing a waiver would result in exceptional extremely unusual hardship so they they want to get being woven back together again i think that's just the immigration judges opinion and you're correct about that you're right i think the difference is that we can't tell at this stage i think what you're driving at is whether this was harmless error for the for the the b o h it's and the immigration judge use the wrong standard and i think the answer is we can't help because it is a discretionary standard and yes while the crime was certainly an issue that was woven together with the with the analysis below i don't think we can say under the true tally of the circumstances and a different and a different standard that the outcome would be the same  i mean you you can certainly reserve rebuttal time if you want to say about the convention against i do i if i can get one minute and i'll try to reserve the rest on the convention against torture we are not asking that reweigh the simply the facts that were presented below to the i j a there's a clue to sort of very clear reasons why the i j a committed reversible error on the state those very quickly the i j a misunderstood the required showing by taking a matter of jeff's each step more son of his father who has these alleged problems that's correct your honor but it's important to know that matter jeff which is relied on extensively below the applicant there had never experienced torture his family had never been targeted the respondent the attorney general of the united states your honors on august thirty first two thousand and the petitioner after a night of drinking got behind the wheel for a second time while intoxicated you know this we know that i mean the question is what what are the consequences at this point in terms of the legal framework that should have been used by the immigration judge and the board they that both contributed to  and what consequences flow from that where they're on the government's position is that the only thing that is properly before this court is the agency's denial kept up for all but you know you make this argument in your supplemental filing of february sixteenth that he didn't raise the lautenberg standard but i have a front of me phones whose motion to file a notice of appeal and his brief on appeal and in part capital d of the notice he says it's inapplicable to allow parolee like mr ruderman who falls under the regime of two forty five b one two and then in his brief on appeal over on page thirty four he has an extensive discussion so whatever else may be wrong with this argument failure to to raise it is surely not it with with regard to the way they are been admissibility is that what your honor is driving because you have two different arguments the first is that there is you said in his opening brief to this court room and argues for the first time that the immigration judge heard in applying the wrong legal standard to the discretionary denial of his waiver that's the lautenberg argument and he did raise that point is so i said whatever else you may want to do with that waiver is not the issue which one point of clarification on that and that is for the waiver of inadmissibility there is basically if we take a step back all discretionary forms of relief basically have to hurdles for areas the first is that they have to and he is arguing here that the second of those did not occur under the correct legal framework and he's saying it was done under the standard extreme hardship framework instead of the lautenberg framework and he certainly preserved that issue again putting to one side how you resolve that he preserves this issue and normally if something's done under the wrong legal framework we don't fix it ourselves that's for the board to do but we tell the board to use the correct framework and that's a legal question yes your honor i understand it is the government's position however that if you actually go to holding ok i see or hear at the administrative record if we look at a r twenty to twenty five he's addressing eligibility does he challenge the eligibility by saying that the wrong legal standard was applied yes that is concede that however when you get to page weigh heavily and alexa's favor he's applying the factors the c v t which was a board decision that talked about cancellation of removal exercise of discretion so when if you meet all the eligibility requirements for cancellation every move will tend to the agency still denying the exercise it discretion and it holds a general principle that miranda held which is basically you weigh the negative and the positive then you go into the body of it well and he's really not sorry i just i just don't see i mean i think he raises l just don't see the waiver he's under a different legal regime as allowed yes your honor but i did you explain why you know as judge what is pointing out he's under a different legal regime and so to this point of whether the discretion would be exercise that that that appears although it would be for the attorney general to determine in the first instance and in this case the board passed on the eligibility finding but yes it does appear that the wrong standard was applied it was a true twelve h standard as opposed to the standard which is a lesser state however again with regards to discretionary that is wholly a par and he could still tell me apart though discretion occasionally discretion is completely on bounded and in those cases we say there's no role for the courts to play because there are no standards that can be applied much more commonly discretion is cabined by guidance in the statute whether it's extreme hardship whether it's public interest and humanitarian concerns there are other phrases and we can go through all of administrative law with this but this is not one of those things that someone down did that whatever the attorney general does is just simply not traditionally reviewable we were viewed these things all the time for abuse of discretion well with regards to it to trial and the exercise of discretion and the i and a precludes jurisdiction right so so right so the role for this court is to make sure that the correct framework has been used and then let the chips fall where they may let the attorney general take another look at it you're making a prediction that the attorney general isn't going to see it differently you may be right but you may not be with regards to that your honor i would just note that petitioners not identified one particular factor that the agency did not consider that would impact the ballots about a way and it's the weight of the things he doesn't contest that he had this extremely unfortunate incident but the weight and the number of considerations are going to vary certainly i do want you to also address those six sentences of aggregate sentences to confinement question because that actually concerns me as well i don't see why under your view the statute should have just said if no matter how you get there you've been conveyed confined for five years or more then you're under this regime that's not what it says that talks about aggregate sentences to confinement and i can see why the statute might treat somebody who's got a couple of different confinement sentences not just probation would be treated differently your honor i think that the first and foremost point true strictly the board very distinctly does not follow the same rules that the courts of appeals of this country follow we don't allow for hybrid representation if you get the pro bono attorney then we're going to reject your pro se groups sometimes people don't like that but that's the way the rules operate the board has quite a different and much less formal regime you don't even have to file a brief number one all you have to do is file your notice of appeal and indicate the grounds if you choose to file a brief you can't but you can file a couple of briefs and that's exactly what happened in his case actually earlier in the board never copes with that the board never says to us you never days into it there is never a signal that the court know that mr ruderman himself has very competently and elaborately actually spelled out the argument if think the problem is this your honor if you have a legal question whether that is actually what the statute calls for there's a you know your honor the board was dealing with what it was had before it they conceded this point moved on to the waiver and to the extent that petitioner is raising these arguments now for the first time it's an implicit argument and there's no direct points to that and specifically in this case it petitioner wanted to allege that that was you know poor performance on his attorney he had a remedy at any point in time he could have filed a motion to reopen for i a c in fact he can still do so i'm not sure if opposing counsel has done so in this case or not but that's a remedy that exists if he just agrees with his counsel's representation but you no matter the law says the board held it's immaterial whether the alien  authorized his attorney to make that representation because along as that was prepared by the attorney of record on his behalf it's prima fashion regarding authorization and so what you can't have both you can't have an argument that is an admissible and admissible co exist the board doesn't say a third of what you just said so there's an issue actually under chen or even about whether we should and fellowship the board's decision with all of the things you're saying immigration judge denied respondents application for cancellation removal based on its failure to establish the requisite good moral character and because he's been convicted of two or more offenses for which the aggregate sentences imposed for five years or more than just cites i believe the responder has not raised any meaningful challenge as the immigrations finding that the inadmissible under the right does actually right that does that count as all the things you just said i don't think so i don't think you really elaborate on why you're taking like a second in time rule or why you're taking a rule of the nor in the pro se filings or why you're being inconsistent with the board's regulations about how many briefs you can file i believe the court cracked well again to address the the court's concern about china and you know obviously the board's decision is what it is but it's clear that because there was the concession there was no need to address these arguments which are now being raised about when you have somebody there's a conflict it's not just that there's a naked concession if there were i would agree with you you know if that was the only thing that was ever filed and there's a concession maybe it would be a matter of those audio situation but it's not we have a more complicated record and well again i there before your time runs out to since i think i understand your position on this you might say a word about the convention against torture because the government's view that he doesn't have family members who had problems in p l o groups it's kind of ridiculous because he doesn't have any family members left in p l o groups whose mother had a christian name not a jewish name so the fact that she's been able to go back and visit doesn't tell me much  as you may or may not know in the former soviet union being jewish is regarded as a nationality so it appears on your passport so as soon as you're showing her asport to somebody they know you're jewish and not to mention the fact that the pat signals whose son he is son of the jewish guy arkady ruderman you know that's that that's all there and it's been a pretty ugly picture in p l o groups unfortunately understand your honor each case though we are bound by the record that's before us and as petitioners burden to show that the record compels the finding not only supports it so is there anti semitism it appears that but the control reports say that it's on the decline and th don't mean it to the jewish populations that's like saying in hitler's germany it was on the decline well if you kill me you know seven million people i guess there are as many people with regards to that reference as far as physical violence is concerned there is no evidence in the record of physical violence honor and in addition to that we have to look at what the evidence admitted was which is vandalism there are some anti semitic statements made by the president but if you read the articles further it shows that they are couched in different terms that they were made against iran for other political reasons supplemental clinics three forty eight through three fifty and three sixty two for the issues that i outlined that are raised in the pro se brief and not in a mr and the council three seconds just to respond to judge barrett's question from earlier i would do i would direct your honor to moderate martin which held that quote judges should avoid cross application of particular principles or standards for the exercise of discretion just as additional support for my for my argument there with respect to the twenty eight j letter submitted by the police last week i think but i'm not going to spend time responding to it if the court finds that that is important we would request an opportunity to respond to it but we're not going to do that here finally i would like to point to  briefs explains that the commission is torture does not only apply to those with unblemished records it stead the convention serves to protect anyone who quote be sent to a country where they will experience torture and i think the record before the edge it was clear that we it is not a mathematical certainty that mr ruderman will be tortured in bellerose but given all of the factors given the prior quarter given his predator testimony the documentary evidence that was submitted alongside of it i think we've met this this circuit's substantial risk test that more than likely than not if he's returned he will be tortured all right thank you very much mr zimmerman and you were appointed by the court were you not and we appreciate your efforts on behalf of your client thanks as well course to the government and will take the case hundred