immigration nationality act section two forty five i just want to just want to read that because we really haven't set forth in any of the you know the breach the status of anyone who was inspected emitted or paroled in the united states or the status of any other in having approved an approved petition for classification as a vote was open titian or maybe adjusted by the attorney general in his discretion and under such rigid regulations as even a prescribe to that of an alien admitted for permanent residence the other statutory eligibility requirements there is there no argument about them but this is i think it's very important to look at this and see that his discretion  must be under such regulations as he may prescribe i think that in this case there isn't any question about jurisdiction because the issue is that there is a legal standard for the burden of proof in this case but is it the one that the government applied to their play the correct standard of proof and if the a j used the right standard then would you agree that we gee if i might i think that that's exactly the point i was going to get get to next so the question really is what did matter of gene mean what what was the attorney general saying and what did the agency do with the attorney general's decision in that case now the standard of of for exercise of discretion that we're discussing in this case and i know everyone knows it quite well is whether there's exceptional extremely unusual hardship to a qualifying relative while you as a qualifying relative the board of immigration appeals an immigration judge they they're a turk potations of matter genius than any every it's just missed that is you case where the applicant was convicted of a violent or dangerous crime that standard applies if they're saying that's what matter jean said but the agency took matter jeanne and they they adopted a regulation that they saw incorporating what the attorney general intended in matter of jean and not only that but expanding the scope of it because the attorney general was referring only to refugee aside ease and and there adjustment status the agency and their regulation making process expanded the scope of that so that applied to every time to just miss this but only where applicant required to twelve page waiver everything so what's the point of incorporating into regulation my or is that unusual i mean there are lots of doctrines that first start with the common law make their way into code while that i don't i don't disagree with that i wouldn't argue with you on that your honor but the u v this standard of of proof for hardship first of all in virtually every case it's that refer to that without any necessarily and before there was any regulation or statute in that regard but this case that standard is only statutory or regulatory th agency could easily if they thought that it should apply to all cases whether there's an i two twelve h way were required i think could have easily made that regulation there's nothing that would stop them from doing that but it appears that what they were doing was attempting to incorporate the meaning of better gene into regulations with a slightly broader scope  and i think this this to me this particular case is just at the extreme limits of what the government might hope to achieve by  expanding this this waiver in the use of this waiver and just for the status cases because i mean if we're not going to argue about whether it's crime involving world servitude everybody agrees with that but it was a misdemeanor  it was the punishment was essentially zero except for b and partnership for probation and maybe a fine there was and so in the mind of the sentencing court this was a very minor eliminate the inadmissibility of aliens who have very petty misdemeanor offenses it's measured in a very calculated way by by looking at the sentence the maximum possible sentence and the sentence the  standard that was that was taken from matter jean i mean how exactly does that regulation apply to a just minute to forty a well i think it does in a way apply to the attorney general or the agency has adopted a regulation that applies to adjustment of status cases but only where there's a to twelve age waiver required so by negative implication all other cases are not to be not to be subject to bad standard standard proof me so then moving on a little bit less the court has as questions about that the issue of what kind of house should the crime be categorized should categorical analysis you applied to it i really don't think there is a case that answers that specifically in this context but when you look at what the agency or what the government is saying what are they saying they're saying ok yes anytime there's a violent or dangerous crime we're going to apply this high standard but in the government's brief page twenty two unlike determining whether crime is an aggravated felony the agency determination that a crime is violent or dangerous is not tied to any specific definition of those terms and there isn't any definition anywhere of those terms and i might also point out that sometimes the term dangerous crime is uses sometimes violent or dangerous criminal is used again muddying the water about what that means the government doesn't want in this case especially to use categorical on alice's because if they did it would not this crime would not be a violent considered a violent crime under it you have seen sixteen and he it just would not be so they don't want to type to me any specific definition because if they use they lose what they really want is to have unfettered untethered discretion for which no standard applies except the ad hoc determination immigration which is actually what exactly would happen in this case the judge just said well ok i'm i think it's dangerous by our dangerous crime now he didn't he didn't refer to any change says that specifically said that this crime is a violent crime he didn't apply any of the legal standards it just said it was and also i'd like to point out that even the matter of gene refers to things that appear to be out of the outside the record and to determine whether the crime there was a c fact they they refer to the police cloak we have of the defendant case and say and recount some of the things she said about her offense so i think it's very unclear as to how many of the facts factual elements that were that the court looked at in that case were actually outside the record i don't think there's any indication in matter jeanne that they actually considered anything that was outside the record so anything else whether or not in our judgment it was violent or dangerous well that this is of course a separate argument in my brief that there is there has to be a standard if there is not a standard for determining what's by our dangers other than the ad hoc determination the immigration judge and my clients do bike to due process and the laws been violated i mean how can he how can he he didn't do or put his position for if if he has nothing to say because the judge can under any standard he's german's without even saying what it is he could determine it's a violent or dangerous round and you appeal to the v i and say it's not violent maybe the i e e e standard  they know when i see it how does that make it in process violation well that's really that's as far as i can go in that argument that's that's what i have to say about it i'm sorry but i think really coming back to it the issue is this discretionary determination and i'll reiterate the argument in our brief i mean i don't believe that the court has jurisdiction over any part of this case in terms of to the acknowledged that the attorney general has relatively unfettered discretion in deciding who will remain in the united states or who will not and that i think that's really what we have here i think if it's the immigration judge has said in light of the serious nature of the crime and and a lack of outstanding equities counterbalancing that serious nature of the crime i'm going to deny  standards are right i think this court is construe that aspect of it but i would be remiss if i didn't reiterate that i understand the department is not entirely on board with my circuit  but so be it only in this but it anyway i think that so there is there are no regulations that require the immigration judge to apply the esteemed colleague focused on the language of the statute we begin with the statute we always do it's made in his discretion and i think the court has acknowledged that that gives the attorney general relatively  application outside's the specific kind of case that are matters being covered what what would you point to in terms of published decisions by the board with regard to application of matter of gene to this context or is there something published by the board that speaks to it i don't believe there is i think that we have matter jeanne and that we have matter which is cited in the government's brief and that has some case if i'm not mistaken but when you made reference to chevron deference right this case would be a lot easier for us to say chevron applies if we had a published decision of the board saying that matter jean applies in this that but that's i believe the way it is and that's why congress when they gave authority to the attorney general to adjust the status of certain aliens did so without any follow up statutory language and that's the argument that i would fall back on if there isn't one and yes if we had a regulation it would be certainly easier case applying it in this context but but that's not require and in light of that i mean i think that's that's really the end of petitioner's argument as far as what if he doesn't have any additional questions on the application of the gene framework then i will just touch upon me attorney general is not bound by the sort of concerns that are inherent in an analysis of determining whether or not someone is removeable from the united states here removing the ability has been conceded it's not issued we are looking at a discretionary determination we're weighing all of the factors and some some instant some aspects are weighed more differently that's something that we that we give and they've been interpreted in a way that is contrary to the position that you're mistaking today so i like to play and point out briefly of it and gene and kay both of those cases were serious crimes  violence attempted robbery in k and manslaughter and in jena and both of those cases the court i don't think the court analyzed whether they were categorically crimes of violence or whether they were categorically aggravated felonies but they just stated that they were aggravated felony so i really i just do not believe there's any way that the government can get around the fact that the agencies